THE  CASE  OF 


STATE 

vs. 

SNYDER 


O 

UPHOLDING  THE  CONSTITUTIONALITY  AND  LE- 
GALITY OF  THE  PURE  FOOD  AND  DRUG  LAW 
OF  THE  STATE  OF  LOUISIANA  AND  OF  THE 
SANITARY  CODE  OF  THE  STATE  OF  LOUISIANA 
AS  FORMULATED  AND  PROMULGATED  BY  THE 
LOUISIANA  STATE  BOARD  OF  HEALTH,  BY  AND 
UNDER  AUTHORITY  OF  ARTICLES  296  AND  297 
OF  THE  CONSTITUTION  OF  THE  STATE  OF  LOU- 
ISIANA AND  ACT  192  OF  1898,  ACT  44  OF  1900, 
ACT  150  OF  1902,  ACT  184  OF  1904  AND  ACT  98 
OF  1906. 

o 

PUBLISHED  BY 

Louisiana  State  Board  of  Health 


19  12 


Y_^c 


INDEX. 

Preface 3 

Issues  Involved.  The  Board’s  brief  in  the  Supreme  Court 
of  Louisiana 5 

The  Facts.  The  Board’s  brief  in  the  Criminal  District 
Court,  Parish  of  Orleans 11 

Judge  Frank  D.  Chretien’s  opinion  and  judgment 30 

The  Opinion  and  Decree  of  the  Supreme  Court  of  Louisiana  50 

The  Board’s  brief  on  rehearing  in  the  Supreme  Court 53 

Rehearing  refused 55 

PRINTED  FOR  THE  INFORMATION  AND  GUIDANCE 
OF  HEALTH  OFFICERS  AND  OTHERS  CHARGED 
WITH  THE  ENFORCEMENT  OF  THE  HEALTH 
AND  SANITARY  LAWS  AND  FOR  THE 
BENEFIT  OF  THE  GENERAL  PUBLIC. 

PUBLISHED  BY 

Lomisiana  State  Board  of  Health 


19  12 


So/„  Ym  e$ 


PREFACE. 


The  case  of  State  vs.  Snyder,  in  which  was  involved 
the  constitutionality  and  legality  of  the  Sanitary  Code 
and  of  the  Pure  Food  and  Drug  Law  of  the  State  was 
decided  on  June  4,  1912,  by  the  Supreme  Court  of 
Louisiana.  The  contentions  advanced  by  the  Board 
of  Health  of  the  State  of  Louisiana  were  upheld  and 
a rehearing  has  just  been  refused.  This  is  the  great- 
est judicial  victory  ever  achieved  by  any  health 
authority  in  this  country,  and  the  State  Board  of 
Health  deems  it  imperative  that  Health  Officers, 
Boards  of  Health,  those  otherwise  charged  with  the 
enforcement  of  health,  sanitary  and  hygienic  laws, 
and  the  public  generally,  should  know  the  issues  in- 
volved in  this  case,  what  the  contentions  of  the  State 
Board  were  therein  and  the  views  taken  of  the  con- 
troversy by  the  Criminal  District  Court  for  the  Par- 
ish of  Orleans  and  by  the  Supreme  Court  of  the 
State  of  Louisiana. 

The  Board  of  Health  of  the  State  of  Louisiana  de- 
sires specially  to  call  attention  to  the  fact  that  every 
constitutional  and  legal  objection  which  could  pos- 
c fO  sibly  have  been  raised  against  the  Sanitary  Code  and 
the  Pure  Food  and  Drug  Law  was  pleaded  and  argued 
in  State  vs.  Snyder.  While  the  first  case  of  the  kind 
ever  to  reach  the  Supreme  Court  it  was  not  a test 
case  in  the  sense  that  there  was  any  agreement  be- 
tween opposing  counsel ; the  litigation  was  vigorously 
fought  through  three  courts  by  the  defendant’s  at- 
torney and  the  attorney  for  the  State  Board  of 
Health  and  every  point  that  could  have  been  made 
was  strenuously  stressed.  The  State  Board  of  Health 
welcomed  the  judicial  test  of  the  laws.  The  culmina- 
tion of  this  case  is  the  result  of  more  than  three  years 
of  effort  on  the  part  of  the  Board’s  attorney  to  have 


some  one  of  the  numerous  prosecutions  which  the 
Board  has  instituted  and  conducted,  carried  to  the 
Supreme  Court. 

Despite  the  many  criticisms  of  the  Sanitary  Code 
and  the  Pure  Food  and  Drug  Law  which  have  ema- 
nated from  time  to  time  from  persons  whose  inter- 
ests were  affected  by  these  enactments  and  notwith- 
standing the  sweeping  opinions  given  by  certain  at- 
torneys to  the  effect  that  the  enactments  were  un- 
constitutional and  illegal,  it  is  most  significant  that 
the  Board  of  Health  of  the  State  of  Louisiana  was 
victorious  in  all  three  courts  before  which  the  case 
of  State  vs.  Snyder  was  tried;  therefore,  it  may  be 
safely  asserted,  the  vindication  of  these  laws  has 
been  sweeping  and  complete  and  the  enactments  stand 
now  as  the  sanitary,  health  and  hygienic  laws  of  the 
State  of  Louisiana. 

The  Board  of  Health  of  the  State  of  Louisiana 
wants  the  people  of  the  State  of  Louisiana  to  know 
that  the  Sanitary  Code  and  the  Pure  Food  and  Drug 
Law  as  held  constitutional  and  legal  in  the  case  of 
State  vs.  Snyder , will  be  enforced  throughout  the 
whole  State — in  the  large  cities,  such  as  New  Or- 
leans, Shreveport,  Monroe,  Baton  Rouge,  Alexan- 
dria, and  Lake  Charles,  and  with  equal  vigor  and  im- 
partiality in  the  most  isolated  and  remote  rural  dis- 
tricts. 

The  whole  State  of  Louisiana  must  lend  itself  to 
the  obedience  of  these  sanitary  and  hygienic  laws 
in  order  that  the  whole  State  may  enjoy  better  health, 
pure  food  and  drugs,  and  improved  living  conditions. 
The  tour  of  the  State  by  the  Health  Train,  the  numer- 
ous lectures  given  under  the  auspices  of  this  Board, 
the  constant  campaign  of  education  which  the  Board 
has  maintained  persistently  during  the  past  few  years 
has,  I believe,  brought  the  people  of  every  section  of 
this  commonwealth  to  the  point  where  they  realize 


as  they  never  did  before  the  necessity  for  the  ob- 
servance of  health  regulations. 

The  decision  in  State  vs.  Snyder  puts  it  within  the 
power  of  the  Board  of  Health  of  the  State  of  Louisi- 
ana to  demand  and  exact  the  enforcement  of  health 
laws  and  sanitary  conditions. 

As  the  Board  desires  a full  and  complete  under- 
standing on  the  part  of  those  charged  with  maintain- 
ing and  enforcing  the  Sanitary  Code  and  Pure  Food 
and  Drug  Law,  and  those  affected  thereby,  of  what 
was  decided  in  State  vs.  Snyder,  herein  a printed  the 
opinions  and  decrees  of  the  Criminal  District  Court 
for  the  Parish  of  Orleans  and  the  Supreme  Court  of 
Louisiana  and  the  briefs  filed  by  the  attorney  of  the 
Board.  A reading  of  the  same  will  allow  no  room 
for  misunderstanding  or  misapprehension. 

OSCAR  DOWLING,  M.  D., 
President  Board  of  Health  of  the 

State  of  Louisiana. 


THE  ISSUES  INVOLVED 

The  Board  of  Health  of  the  State  of  Louisiana  be- 
lieves that  the  issues  involved  in  the  case  are  fairly 
and  impartially  stated  in  the  briefs  filed  by  the 
Board's  Counsel  which  here  follow.  Note  that 
vshile  additional  authorities  were  filed  in  the 
Supreme  Court  the  brief  filed  in  the  Crim- 
inal District  Court  was  also  used  in  the 
Supreme  Court. 


No.  19,418. 


STATE  OF  LOUISIANA 
versus 

LARRY  H.  SNYDER. 


In  Re.  Larry  H.  Snyder  Applying  for  Writ  of  Cer- 
tiorari, or  Review. 


Brief  in  Behalf  of  the  State,  and  Filed  by  the  Board 
of  Health  of  the  State  of  Louisiana. 


May  It  Please  The  Court: 

The  defendant  was  convicted  of  violating  Section 
37  of  the  Pure  Food  and  Drug  Law  of  the  State  of 
Louisiana  which  reads: 

“The  use  of  saccharin  in  any  food  product  is 
prohibited.” 

He  appealed  from  the  Second  City  Criminal  Court 
to  the  Criminal  District  Court  and,  after  full  argu- 
ment and  the  submission  of  briefs,  the  conviction  and 
sentence  was  affirmed  by  Judge  Frank  D.  Chretien, 
lengthy  written  reasons  being  assigned  by  Judge 
Chretien. 

This  prosecution  was  begun  and  has  been  forward- 
ed by  the  Board  of  Health  of  the  State  of  Louisiana 
and  the  present  attorney  for  the  Board  filed  with 
Judge  Chretien  a brief  which  he  believes  effectually 
disposes  of  all  of  the  defendant’s  contentions,  par- 
ticularly those  aimed  at  the  delegation  of  power  to 
the  Board  by  the  Legislature  and  those  directed 
against  the  method  of  publication  imposed  by  the 
mandate  of  the  Legislature  on  the  Board  in  the  pro- 
mulgation of  the  Sanitary  Code  and  Pure  Food  and 
Drug  Law  of  Louisiana. 

With  the  permission  of  this  Court  first  obtained, 
counsel  for  the  Board  files  herewith  copies  of  the 


—6— 


brief  heretofore  filed  in  the  Criminal  District  Court 
and  counsel  respectfully  urges  upon  this  Court  that, 
in  his  belief,  this  brief  covers  the  subject  in  all  of 
its  phases. 

Counsel  especially  directs  this  Court’s  attention  to 
Caption  I of  this  brief  (pages  3 to  11)  filed  in  the 
District  Court  as  disposing  absolutely  of  the  ques- 
tion of  delegated  power  and  as  clearly  resolving  such 
into  an  exercise  of  administrative , or  executive  power 
as  contradistinguished  from  legislative  power. 

Since  the  preparation  for  this  Court  of  the  copies 
of  the  brief  filed  in  the  Criminal  District  Court, 
counsel’s  attention  has  been  called  to  several  authori- 
ties not  quoted  in  the  Criminal  District  Court  brief 
and  counsel  now  takes  this  opportunity  of  presenting 
these  authorities  to  this  Court. 

In  the  case  of  People  ex  rel.  Lieberman  vs.  Vande- 
carr,  175  N.  Y.  440  (People  ex  rel.  Lieberman  vs. 
Vandecarr,  81  App.  Div.  128 , affirmed)  after  stating 
the  case,  the  Court  said:  (page  443.) 

“Provisions  regulating  the  vending  of  food,  in 
the  interest  of  public  health,  have  been  a part  of 
the  statute  Jaw  for  a century,  or  more. 

“The  Courts  have  regarded  the  principle  in- 
volved as  a proper  and  necessary  municipal  regu- 
lation. 

“In  Metropolitan  Board  of  Health  vs.  Heister, 
(37  N.  Y.  661),  where  the  act  to  establish  a metro- 
politan sanitary  district  was  held  to  be  constitu- 
tional, the  following  language  was  used  by  the 
Court,  after  pointing  out  various  acts  from  1784 
to  1866,  enacted  in  the  exercise  of  the  police 
power  for  the  protection  of  the  public  health: 

“ ‘These  acts  show  that,  from  the  earliest  or- 
ganization of  the  Government,  the  absolute  con- 
trol over  persons  and  property,  so  far  as  the  pub- 
lic health  was  concerned,  was  vested  in  boards  or 
officers,  who  exercised  a summary  jurisdiction 
over  the  subject,  and  who  were  not  bound  to 
wait  the  slow  course  of  the  law;  and  that  juries 
had  never  been  used  in  this  class  of  cases.  The 
Governor,  the  Mayor,  Health  Officers,  under 
various  names,  were  the  persons  intrusted  with 
the  execution  of  this  important  function;  and 


•7— 


they  were  always  empowered  to  act  in  a sum- 
mary manner.  Scarcely  a year  passes,  or  did 
pass,  prior  to  1846,  in  which  the  Legislature 
did  not  charter  some  city  or  village,  and  give  to 
the  local  powers  full  authority,  by  their  own 
action  and  in  their  own  way,  to  regulate,  abate 
or  remove  all  trades  or  manufactures  that  might 
be  by  them  deemed  injurious  to  the  public  health. 
I have  examined  the  statutes  from  1832  onward, 
and  find  that  scarcely  a year  passes  by  in  which 
these  powers  were  not  given  to  many  cities  or 
villages  by  original  authority  or  by  amendments 
to  their  charters.’ 

“That  the  Legislature  in  the  exercise  of  its  con- 
stitutional authority  may  legally  confer  on 
boards  of  health  the  power  to  enact  sanitary  or- 
dinances, having  the  force  of  law  within  the  dis- 
tricts over  which  their  jurisdiction  extends,  is 
not  an  open  question.  This  power  has  been  re- 
peatedly recognized  and  affirmed” 

Polinsky  vs.  People,  73  N.  Y.  65  (p.  69). 
Health  Department  vs.  Knoll,  70  N.  Y.  530. 

Counsel  believes  that  it  has  been  shown  in  the 
brief  filed  in  the  Criminal  District  Court  (pp.  15-17), 
and  attached  hereto,  that  the  provisions  of  Art.  42 
of  the  Constitution,  regarding  promulgation,  relates 
exclusively  to  laws  “passed  by  the  General  Assem- 
bly.” Even  the  Article  of  the  Constitution  itself 
carries  an  exception  as  regards  a certain  class  of  laws 
“passed  by  the  General  Assembly”  and  certainly  the 
provision  has  no  application  to  that  large  class  of 
rules,  ordinances  and  orders  passed  and  issued  by 
governmental  agencies  in  the  exercise  of  executive 
or  administrative  functions. 

There  may  be  various  methods  of  making  a law, 
an  ordinance  or  an  order  known.  The  object — the 
only  object — to  be  subserved  is  to  put  citizens  on 
their  guard,  by  making  laws  known.  It  is  not  pre- 
tended, and  could  not  be  successfully,  or  even  rea- 
sonably, urged,  that  ‘publication  of  such  regulations 
as  the  Santary  Code  and  Pure  Food  and  Drug  Law 
in  the  State  journal’  would  be  notice  to  any  but  a 
small  portion  of  the  citizens  of  the  commonwealth 
of  the  action  taken  by  the  Board  under  the  several 


-8— 


acts  directing  it  to  prepare  a Sanitary  Code  and 
Pure  Food  and  Drug  Law. 

The  Legislature  evidently  debated  the  question 
and  concluded,  with  good  reason  and  sound  judg- 
ment, that  the  most  effective  manner  of  making  such 
sanitary  rules  and  hygienic  laws  known  was  to  have 
the  Board  print  them  in  pamphlet  form  for  free 
distribution  among  health  officers,  the  public  and 
those  at  interest.  This  was  done  by  the  Board  I) 
is  not  pretended  that  it  was  not  done. 

In  The  Queen  vs.  The  Justices  of  Huntingdon,  L. 
R.  4,  Q.  B.  D.  552,  one  W.  B.  Alexander  was  sum- 
moned before  the  Justices  of  Huntingdon  charged 
with  failing  to  comply  with  an  order  of  the  town 
council.  It  was  objected  by  the  accused  that  there 
had  been  no  sufficient  publication  of  the  order  he 
was  charged  with  violating,  and  upon  this  objection 
being  overruled,  and  a conviction  following,  a writ 
of  certiorari  was  applied  for  to  bring  the  conviction 
up  and  to  quash : 

“Then,  although  the  Statute  provides  no  spe- 
cific mode  of  publication,  it  can  not  be  enough  to 
show. that  there  has  been  a casual  publication  by 
sticking  up  a few  copies  of  the  notice  in  some 
possibly  obscure  street  in  the  borough.” 

The  Court : 

Denman,  J.  “I  am  of  the  opinion  that  there 
is  no  pretense  for  this  application.  * * * Then 
as  to  the  publication,  it  is  not  necessary  that 
there  should  be  notice  to  every  individual  in 
the  borough.” 

The  syllabus  of  this  case  reads: 

“In  the  absence  of  any  special  provision  for 
the  mode  of  publication  of  the  order,  it  is  en- 
ough to  show  that  it  has  been  posted  up  in  five 
or  six  places  within  the  borough.” 

In  Schweitzer  vs.  The  City  of  Liberty,  82  Mo.  309 
(p.  314),  it  appears  that  the  charter  of  the  City  of 
Liberty  (Sec.  37,  Missouri  Acts  of  1874,  p.  339),  pro- 
vided that: 

“All  ordinances  passed  by  the  City  Council, 
within  thirty  days  after  they  become  laws,  shall 
be  published,  * * * but  the  failure  to  publish, 
* * * shall  not  render  void  or  affect  the  valid- 


—9— 


ity  of  any  such  ordinance,  unless  delay  may 
cause  such  ordinance  to  act  retrospectively  on 
the  rights  of  individuals.” 

Counsel  cites  the  two  cases  immediately  preceding 
to  show  that  elsewhere,  as  in  Louisiana,  there  is  no 
particular  method  of  promulgation  for  rules  and  reg- 
ulations such  as  those  being  tested  at  bar  and  that 
such  rules  and  regulations  may  be  made  known  by 
any  method  deemed  sufficient  by  the  Legislature  to 
accomplish  the  purpose  desired:  i.  e.,  that  of  giving 
notice  to  the  public. 

It  is  urged  that  the  conviction  of  the  accused  be 
sustained. 

Respectfully  submitted, 

BENJAMIN  T.  WALDO, 
Attorney  for  Board  of  Health  of  the 

State  of  Louisiana^ 


—10— 


STATE  OF  LOUISIANA 


versus 

L.  H.  SNYDER. 


Appeal  from  Conviction  of  Defendant  in  Second  City 
Criminal  Court , Judge  A.  M.  Aucoin. 


BRIEF  IN  BEHALF  OF  STATE  OF  LOUISIANA 
(Louisiana  State  Board  of  Health  Prosecuting.) 


THE  FACTS. 

The  Constitution  of  Louisiana  of  the  year  1898 
Arts.  296  and  297)  makes  it  mandatory  upon  the 
General  Assembly  to  create  “FOR  THE  STATE,” 
a Board  of  Health  and  to  “DEFINE  THE  DUTIES 
AND  PRESCRIBE  THE  POWERS  THEREOF”; 
and  also  to  protect  “THE  PEOPLE  AGAINST  THE 
SALE  OF  INJURIOUS  OR  ADULTERATED 
DRUGS,  FOOD  AND  DRINK  AND  AGAINST 
ANY  AND  ALL  ADULTERATIONS  OF  THE 
GENERAL  NECESSITIES  OF  LIFE  OF  WHAT- 
EVER NATURE  AND  CHARACTER.” 

By  Act  192  of  1898  the  Legislature  undertook  to 
carry  out  the  above  constitutional  mandates ; Sec.  1 
of  this  Act  creates  the  Board  of  Health  of  the  State 
of  Louisiana;  Sec.  2,  relates  to  certain  of  its  officers 
and  Sec.  3,  gives  to  the  Board  “all  powers,  authority 
and  jurisdiction  now  possessed  by  the  (then)  existing 
State  Board  of  Health  under  the  (then)  present  laws 
now  in  force”;  except  as  changed  by  the  (then)  pre- 
sent act;  and  further  provides  that  the  Board  SHALL 
prepare  a Sanitary  Code  for  the  State  and  specifies 
what  the  scope  of  the  Code  shall  be. 

This  Act  192  of  1898  has  been  ammended  at  every 
session  of  the  Legislature  but  one,  during  the  past 
fourteen  years;  we  are  presently  concerned  with  but 
two  of  these  amendments,  namely  those  relative  to 
promulgation  and  penalty. 


—11— 


Act  192  of  1898,  as  a cursory  inspection  will  show, 
was  originally  most  inartistically  drafted;  promul- 
gation was  to  be  by  publication  “in  the  official  jour- 
nal of  the  State  Capitol  ” The  Legislature,  however, 
in  1902  amended  this  section  so  as  to  provide  that 
“on  the  adoption  of  said  Code  by  the  Board  it  shall 
be  printed  and  published  in  pamphlet  form  with 
such  number  of  copies  as  may  be  necessary  for  the 
distribution  for  the  information  of  health  bodies, 
health  and  sanitary  officers  and  the  public  gener- 
ally.'*’ 

In  1906  (Act  98)  the  Legislature,  “to  further 
carry  into  effect  Art.  297  of  the  Constitution  of  the 
State  of  Louisiana  and  to  preserve  public  health,” 
gave  the  State  Board  of  Health  power  to  revise 
the  Sanitary  Code  provided  for  in  Sec.  3 of  Act  192 
of  1898;  and  by  this  Act  98  of  1906  the  Act  192  of 
1898  was  further  amended  BY  THE  LEGISLA- 
TURE FIXING  THE  PENALTY  FOR  VIOLAT- 
ING THE  PROVISIONS  OF  THE  CODE. 

For  the  convenience  of  the  Court  it  is  stated  that 
the  Santary  Code  and  Pure  Food  and  Drug  Law  is 
dealt  with  in  Act  19^  of  1898,  Act  44  of  1900,  Act  150 
of  1902,  Act  184  of  1904,  and  Act  98  of  1906;  counsel 
has,  he  believes,  given  above  the  only  provisions  of 
these  statutes  affecting  the  case  at  bar. 

It  is  not  contended  that  there  is  any  fault  or  omis- 
sion as  to  the  promulgation  of  these  several  acts  of 
the  Legislature  and  it  is  admitted  that  not  only  did 
the  Board  promulgate  the  Sanitary  Code  and  the 
Pure  Food  and  Drug  Law  as  the  Legislature  directed 
this  promulgation,  but  also  that  the  Board  went  a 
step  further  and  inserted  advertisements  in  news- 
papers in  Baton  Rosage,  Shreveport  and  New  Orleans 
calling  the  attention  of  all  concerned  to  the  fact  that 
the  Board  had  complied  with  the  legislative  mandate, 
that  the  Sanitary  Code  and  that  the  Pure  Food  and 
Drug  Law  had  been  prepared,  and  that  it  was  ready 
for  FREE  distribution  to  all  who  applied  for  the 
same. 

For  a violation  of  the  regulations  made  by  the 
Board,  as  aforesaid,  the  defendant  was  charged, 
tried  and  convicted.  From  this  conviction  he  has  ap- 
pealed. He  relies  on  the  special  demurrer  he  has 


— 12- 


filed.  The  FACTS  upon  which  his  conviction  rests 
are  too  plain  and  too  conclusively  proven  to  admit 
discussion. 


Counsel’s  theory  of  the  case  at  bar  differs  material- 
ly from  that  so  ably  and  forcibly  advanced  by  the 
learned  attorney  for  the  accused.  This  theory  coun- 
sel will  proceed  to  elucidate  to  the  Court  under  cap- 
tion I of  this  brief  before  entering  into  a discussion 
of  the  law  and  the  arguments  submitted  by  opponent 
and  which,  it  will  be  shown  herein,  do  not  apply 
under  the  circumstances  of  the  present  prosecution. 

Counsel  requests  the  further  patient  indulgence  of 
the  Court  and  begs  the  Court  to  believe  that  only  the 
vast  importance  of  the  issue  could  induce  him  to  in- 
flict a brief  of  the  prolixity  which  the  present  one 
is  likely  to  assume. 

I. 

Counsel  asks  the  Court  to  retrospect  a moment 
upon  the  developments  made  in  social,  business  and 
political  life  within  the  past  twenty-five  years.  The 
multiplication  of  railways  and  water-craft  has 
evolved  out  of  a moribund  germ  the  law  of  carriers ; 
a few  stagnant  principles  have  been  stirred  and  am- 
plified into  the  laws  of  damages  with  all  of  their 
subdivisions  and  subtle  distinctions;  the  old  ide*\s 
in  regard  to  interest  and  usury,  factorage,  broker- 
age and  insurance,  have  been  modified  by  the  exi- 
gencies of  a necessary  commerce.  But  recently  has 
civilization  attained  its  present  state  of  refined  com- 
plexity, whose  intricate  elaboration  of  customs,  us- 
ages and  laws  stands  out  against  the  simple,  rude 
and  ingenuous  past  as  does  some  marvelous  pattern 
of  Gobelin  tapestry  contrast  the  clumsy  wicker-work 
of  a painted  Celt. 

And  the  law  has  met  every  step  and  advance  made 
along  social,  political  or  economic  lines;  not  with 
some  makeshift  framed  to  suit  the  expediency  of  the 
passing  hour,  but  with  a rule  of  action  founded 
upon  immutable  principles;  and  counsel  contends 
and  will  show  that  when  in  a case  exactly  similar  to 
the  one  at  bar  the  Supreme  Court  of  Indiana  said 


—13— 


.that  a Pure  Food  and  Drug  Law,  framed  with  legis- 
lative sanction  by  a Board  of  Health,  “is  not  legisla- 
tion but  merely  the  exercise  of  administrative  pow- 
er,” the  Indiana  Court  simply  enunciated  a principle 
as  old,  and  as  well  founded,  as  any  emanating  from 
the  exercise  of  the  police  power.  It  must  be  borne 
in  mind  that  almost  every  act  of  man  in  his  multi- 
tudinous relations  with  his  fellows,  society  and  the 
State,  is  affected,  or  controlled,  or  limited,  by  that 
indefinable  ignis  fatuus — the  police  power.  It  is 
ever  present.  It  is  ever  expanding.  Its  limitations 
are  ever  elusive.  The  kaleidoscopic  changes  wrought 
by  time  and  the  advancement  of  scientific  knowledge 
may  easily  and  readily  make  not  only  valid  but  high- 
ly desirable  to-day  regulations  which  would  a decade, 
a year,  or  a month  ago  have  been  deemed  repugnant 
and  reprobated  as  unconstitutional  exercise  of  gov- 
ernmental powers.  Further,  the  necessity,  both  phys- 
ical and  moral,  which  is  ever  present  when  these 
changes  occur  may  make  methods  of  dealing  with 
new  problems,  arising  under  the  police  power,  good 
and  sufficient  to-day  which  were  undreamed  of  yes- 
terday. For  instance,  the  guarantee  of  the  Magna 
Charta,  stated  in  the  Federal  and  in  all  of  the  State 
Constitutions,  in  the  words  “the  right  of  the  people 
to  be  secure  in  their  persons,  houses,  papers  and  ef- 
fects against  unreasonable  searches  and  seizures,” 
has  a limitation  at  the  present  time  which  did  not  at- 
tach to  the  guarantee  in  1215  A.  D.,  or  in  1787  A.  D.; 
and  it  will  scarcely  be  contended  seriously  that  a 
State  (or  the  State  through  an  agency,  such  as  the 
State  Board  of  Health)  can  not  enter  any  house  for 
the  mere  purpose  of  sanitary  inspection,  or  seize 
and  destroy  any  article  deleterious  to  the  public 
health;  and  it  is  not  that  the  sacred  principles  of  the 
law  have  changed  (or  been  changed),  it  is  merely 
that  the  shifting  sands  of  time  have  wrought  devel- 
opments which  the  law  has  had  to  meet  and  deal 
with. 

When  the  problems  of  government  were  less  com- 
plex and  when  economic  questions  were  few  and  un- 
changing there  was  little  need  for  delegating  the 
power  of  the  State  to  governmental  agencies,  but 
when  these  problems  and  questions  became  many, 


— 14 — 


frequent  and  often  demanded  instant  solution,  it  was 
found  that  the  welfare  of  the  State,  as  well  as  con- 
venience, was  best  subserved  by  delegating  to  gov- 
ernmental agencies  (such  as  municipalities,  organized 
political  subdivisions  of  the  commonwealth,  boards 
and  commissions)  the  power  to  deal  with  certain  lo- 
calities or  territory,  or  the  power  to  deal  with  certain 
definite,  specific  subjects. 

Nothing  can  better  illustrate  this  growth  of  the 
delegation  of  administrative  power  to  governmental 
agencies  than  the  development  of  the  regulation  of 
common  carriers  by  the  State.  Here  is  a subject  once 
simple  but  now  complex  and  ever  changing.  It 
would  appear,  too,  that  the  question  of  hauling  a cer- 
tain amount  of  freight  a determined  distance,  or  the 
transportation  of  passengers  a number  of  miles, 
could  be  easily  regulated  by  a simple  statute  emanat- 
ing from  the  legislative  power;  but,  on  further  con- 
sideration, it  will  be  observed  that  climatic,  topo- 
graphical and  countless  other  considerations  enter 
into  the  matter  and  that  a haul  of  a hundred  miles 
may  be  one  matter  in  the  eastern  part  of  a State  (not 
to  mention  the  United  States)  and  quite  a different 
matter  in  the  western  part.  Congress  and  the  several 
State  Legislatures  early  recognized  the  absolute  fu- 
tility of  dealing  with  the  question  by  direct  legis- 
lative enactment  and,  going  back  to  first  principles, 
invoking  the  Civil  Law  of  administration,  delegated 
to  boards  and  commissions  the  power  to  deal  with 
the  subject  matter. 

The  railroad  commission,  for  instance,  carefully 
weighs  every  fact  entering  into  the  affair,  views 
each  angle  of  the  situation  and  fixes  the  freight  rate 
from  one  point  to  another  upon  cotton,  grain  or  lum- 
ber at  a certain  number  of  cents  per  hundredweight. 
Is  this  not  the  most  absolute  control  over  the  largest 
of  America’s  vested  interests?  Again,  the  same  body 
determines  that  a given  train  shall  stop  at  a speci- 
fied town;  is  not  this  approximating  the  manage- 
ment of  the  affairs  of  the  railroad  corporation  by 
the  State  through  a board?  Both  orders  are  enforce- 
able civilly  and  their  infractions  are  punishable  crim- 
inally; yet  who  would  contend,  in  this  day  and  gen- 
eration, that  the  making  of  these  orders  are  any- 


—15— 


thing  other  than  administrative  acts,  or  that  such  acts 
are  unconstitutional. 

It  must  be  remembered,  also,  in  dealing  with  this 
illustration  of  delegated  power,  that  the  control  ex- 
ercised by  railroad  boards  and  commissions  extends 
to  the  most  minute  detail  of  the  railroad’s  dealings 
and  relations  with  the  public  and  the  commonwealth 
— even  down  to  the  question  of  the  location  and  con- 
struction of  depots  and  other  facilities. 

Railroad  Commission  cases  116  U.  S.  307,  29 
La.  Ed.  636  (Counsel  particularly  directs  the 
Court’s  attention  to  the  opinion  of  Chief  Justice 
Waite  in  Stone  case,  ib.  324;  Judge  John  A. 
Campbell  represented  the  Mobile  & Ohio  Rail- 
road Co.)  ; Minneapolis  Eastern  Railway  Co.  vs. 
Minnesota,  134  U.  S.  467,  33  La.  Ed.  985  (in  this 
case  rate  fixing  by  commission  upheld).  This 
character  of  citation  could  be  extended  almost 
indefinitely. 

In  this  State,  under  Act  240  of  1908  (as,  indeed, 
is  universally  true  as  to  such  orders  in  almost  all  of 
the  States)  it  is  a misdemeanor  “to  disobey  or  vio- 
late any  of  the  orders,  rules  or  regulations  of  the 
Railroad  Commission.” 

See  also  M.  L.  & T.  R.  R.  & S.  S.  Co.  vs.  R.  R. 
Com.  of  La.,  109  La.  247.  (The  Court  in  this  case 
said:  “The  railroad  commission  IS  AN  AD- 
MINISTRATIVE BOARD  created  by  the  State 
FOR  CARRYING  INTO  EFFECT  THE  WILL 
OF  THE  STATE  AS  EXPRESSED  BY  ITS 
LEGISLATION.  Its  authority  and  duty  are  not 
limited  to  matters  concerning  public  safety  or 
health,  but  extend  to  matters  concerning  public 
comfort  and  convenience.”)  See  also  La.  Ry. 
& N.  Co.  vs.  Ry.  Com.  of  La.,  121  La.  848  (uphold- 
ing right  of  Ry.  Com.  to  order  building  of  a 
depot).  In  La.  State  Board  of  Health  vs.  Stand- 
ard Oil  Co.,  107  La.  713,  a view  much  as  in  M.  L. 
& T.  R.  R.  & S.  S.  Co.  vs.  Ry.  Com.  was  ex- 
pressed. The  Court  said:  “The  functions  for 
the  discharge  of  which  the  State  Board  of 
Health  is  established  are  of  vital  consequence  to 
the  whole  people  of  the  State,  affecting  them  in 
the  matter  of  health  and  safety;  and  there  is  no 


—16— 


reason  why  a narrower  rule  of  construction 
should  be  applied  to  the  power  of  that  board  than 
to  those  of  corporations  of  comparatively  minor 
importance.” 

Hence  we  may  take  it  to  be  a settled  principle  of 
law  that  the  State  and  Federal  boards  and  commis- 
sions to  which  are  intrusted  the  control  of  common 
carriers  PERFORM  ADMINISTRATIVE  AND 
NOT  LEGISLATIVE  ACTS  when  they  make  and 
promulgate  rules  and  regulations  governing  ALL  of 
the  carriers’  relations  with  the  public  and  for  the 
violation  of  which  rules  and  regulations  a precedent 
State  or  Federal  statute  provies  a penalty  of  fine 
and  imprisonment. 

Allied  closely  and  akin  to  health  legislation  is  that 
begun  in  this  State  by  Act  6 of  the  Extra  Session  of 
1899,  commonly  known  as  the  Sewerage  and  Water 
Board  Act.  This  act  provides  that  the  Board  “shall 
have  further  power  to  make  reasonable  rules  and 
regulations  for  the  use  and  consumption  by  such  pay 
customers,  and  by  such  free  consumers  of  water  sup- 
ply furnished  them,  and  to  prevent  the  “ obstruction 
of,  interference  with  or  damage  to  the  pipes,  mains 
and  other  appurtenances  of  the  water  system  ” The 
penalty  for  violating  these  rules,  WHICH  THE 
SEWERAGE  AND  WATER  BOARD  HAD  (then) 
YET  TO  MAKE  WAS  FIXED  AT  A FINE  OF 
$25  OR  IMPRISONMENT  FOR  THIRTY  DAYS, 
OR  BOTH. 

Now  the  Legislature  could  just  as  easily  have  said: 
“No  one  shall  obstruct  or  interfere  with,  or  damage 
any  of  the  pipes,  mains  and  other  appurtenances  of 
the  water  system  under  a penalty  of  $25  fine  or 
thirty  days’  imprisonment,  or  both,”  but  the  Legis- 
lature in  its  wisdom  and  foresight  knew  that  it  was 
far  safer  and  saner  to  entrust  to  the  Sewerage  and 
Water  Board  the  making  of  appropriate  rules  and 
regulations  because  the  organization  and  mainte- 
nance of  the  system  was  intrusted  to  that  Board ; it 
was  charged  and  freighted  with  the  responsibility 
of  the  undertaking;  the  special  knowledge  of  the 
requirements  was  in  the  Board  and,  in  consequence, 
the  Board  was  better  fitted  to  make  these  rules  than 
the  Legislature. 


—17— 


In  1908,  under  Act  270  of  that  year,  the  Legisla- 
ture gave  the  Sewerage  and  Water  Board  the  power, 
and  made  it  the  Board’s  duty,  “BY  PROPER  ORDI- 
NANCES AND  REGULATION  BY  IT”  to  require 
all  inhabited  premises  in  New  Orleans  to  be  connect- 
ed with  the  water  mains  and  TO  FORCE  THE  PEO- 
PLE OF  NEW  ORLEANS  TO  USE  THE  PUBLIC 
WATER  SUPPLY  IN  LIEU  OF  CISTERNS; 
again  the  Legislature  left  to  the  Board  the  determi- 
nation, “by  proper  ordinances  and  regulations  by  it,” 
of  the  method  through  which  this  desired  result  was 
to  be  accomplished.  These  regulations  and  ordi- 
nances are  merely  administrative,  just  as  the  prepara- 
tion of  the  Sanitary  Code  and  the  preparation  of  the 
Pure  Food  and  Drug  Law  were  administrative,  and 
not  legislative,  on  the  part  of  the  State  Board  of 
Health. 

While  never  the  subject  of  serious  judicial  test 
in  this  State,  the  delegation  to  school  boards  and 
trustees  of  various  matters  incident  to  school  admin- 
istration has  been  the  prolific  source  of  litigation 
elsewhere  in  the  Union;  almost  every  delegation  of 
power  being  questioned  upon  the  ground  that  it  was 
an  attempt  to  delegate  to  these  boards  and  trustees  the 
power  of  legislation.  The  jurisprudence  upon  the 
subject  is,  however,  uniform,  it  being  held  that  such 
acts  are  administrative  and  not  legislative. 

Leeper  vs.  State,  103  Tenn.  500,  48  L.  R.  A. 
167  (it  was  contended  in  this  case  that  the  stat- 
ute was  unconstitutional,  in  that  it  delegated 
legislative  powers  to  the  School  Commission; 
the  Court  held  that  it  conferred  executive  or  ad- 
ministrative functions  only)  ; In  re  Chapman,  166 
U.  S.  41  La.  Ed.  1154;  Turner  vs.  Detroit,  104 
Mich.  326. 

In  so  far  as  the  delegation  of  power  to  Boards 
of  Health  to  determine  certain  facts  or  conditions 
upon  which  legislative  statutes  are  to  operate  are 
concerned,  the  jurisprudence  is  uniform  to  the  effect 
that  the  determination  of  such  facts  or  conditions  by 
Boards  of  Health  do  not  constitute  legislation  by 
such  boards,  but  are  merely  administrative  or  execu- 
tive. 

Blue  vs.  Beach,  155  Ind.  121,  56  N.  E.  89,  50 


—18— 


L.  R.  A.  64.  (The  Court  held  that  the  power 
granted  to  ADMINISTRATIVE  boards,  of  the 
nature  of  boards  of  health,  etc.,  to  adopt  rules, 
by-laws  and  regulations  reasonably  adapted  to 
carry  out  the  purpose  or  object  for  which  they 
were  created,  is  not  an  improper  delegation  of 
legislative  authority).  4 Am.  & Eng.  Enc.  Law 
599.  (The  legislature  may,  in  the  exercise  of  its 
constitutional  authority  confer  upon  boards  of 
health  the  power  to  enact  rules  and  ordinances 
for  the  promotion  of  the  public  health  and  the 
abatement  and  prevention  of  nuisances,  which 
shall  have  the  force  of  law  within  the  jurisdic- 
tion of  the  several  boards;  Citing:  Slaughter 
House  cases  16  Wall.  36;  Livingston  vs.  Pippin, 
31  Ala.  542;  State  vs.  Tryon,  39  Conn.  183;  Rob- 
erts vs.  Ogle,  30  111.  459;  Covington  vs.  East  St. 
Louis,  78  111.,  548;  Des  Moines  Gas  Co.  vs.  Des 
Moines,  44  Iowa  505 ; Harrison  vs.  Baltimore,  1 
Gill  (Md.)  264;  Salem  vs.  Eastern  Ry.,  98  Mass. 
431;  Daigley  vs.  Boston,  100  Mass.  544;  Wre- 
ford  vs.  People,  14  Mich.  41 ; Metcalf  vs.  St. 
Louis,  11  Mo.  102;  St.  Louis  vs.  Bofinger,  19  Mo. 
13;  State  vs.  Clark,  28  N.  H.  176;  McDermott 
vs.  Board  of  Police,  25  Barb.  635;  Gregory  vs. 
New  York,  40  N.  Y.  273;  People  vs.  B.  of  H.,  71 
Hun.  84;  Met.  Board  vs.  Heister,  37  N.  Y.  661; 
Health  Dept.  vs.  Knoll,  70  N.  Y.  530;  Polinski 
vs.  People,  73  N.  Y.  65. 

“The  Legislature  of  a State  may  delegate  the  power 
to  determine  some  fact  or  state  of  things  upon  which 
a statute  makes,  or  intends  to  make,  or  its  own  action 
depends.”  Elwell  vs.  Comstock,  9 Am.  & Eng.  An- 
notated cases  270.  See  Digest  (1-10)  page  180. 

The  above  case  cites  State  vs.  Sullivan,  67 
Minn.  379,  69  N.  W.  1094.  (The  language  of  the 
Minnesota  Court  is:  (p.  1095)  “It  is  well  set- 
tled that  it  is  not  always  essential  that  a legis- 
lative act  must  in  any  event  take  effect  as  law 
after  it  leaves  the  hand  of  the  legislature.  If 
the  law  is,  in  its  provisions,  a complete  statute 
in  other  respects  when  it  leaves  the  legislature, 
its  taking  effect  may  be  made  conditional  upon 
some  subsequent  event”;  just  as  in  the  case  at 


—19— 


bar  the  taking  effect  of  the  Act  192  of  1898,  and 
amendments,  was  made  conditional  upon  the 
drafting  of  the  Sanitary  Code  and  the  Pure  Food 
and  Drug  Law  by  the  State  Board  of  Health.) 

Counsel  believes  that  the  theory  and  principle  for 
which  he  contends  is  most  clearly  expressed  in  Isen- 
hour  vs.  State,  62  N.  E.  40.  This  was  a Pure  Food  and 
Drug  Law  prosecution  made  under  a Board  of  Health 
regulation  which  had  been  enacted  under  circum- 
stances similar  in  almost  all  respects  to  those  under 
which  the  Louisiana  State  Board  of  Health  framed 
the  Sanitary  Code  and  the  Pure  Food  and  Drug  Law. 
The  Indiana  constitution  provided  restrictions  ex- 
actly similar  to  the  Louisiana  constitution  and  the 
Indiana  Supreme  Court  said: 

“This  class  of  legislation  emanates  from  an  ex- 
ercise of  the  police  power  of  the  State  for  the 
protection  of  the  public  health.  The  power  of 
the  legislature  and  its  right  to  determine  for 
itself  when  an  emergency  for  such  legislation 
exists,  and  the  means  and  instrumentalities  neces- 
sary to  accomplish  the  end  in  view,  is  no  longer 
a doubtful  question.  The  particular  character 
of  the  subject  (which  was  a Pure  Food  and 
Drug  Law)  embodying  as  it  does  consideration 
of  sanitary  science,  is  something  to  require  for 
just  legal  control  something  more  than  legis- 
lative wisdom  to  accurately  designate  the  sub- 
jects and  instances  to  be  affected.  The  classifi- 
cation of  these  subjects  and  the  prescribing  of 
rules  by  which  they  may  be  determined  by  a 
qualified  agent,  IS  NOT  LEGISLATION,  BUT 
MERELY  THE  EXERCISE  OF  ADMINI- 
STRATIVE POWER.  The  law  itself  is  perfect 
and  effective  in  all  its  parts.  In  respect  to  mat- 
ters to  be  determined  by  the  State  Board  of 
Health  in  its  execution,  it  awaits  the  perform- 
ance of  these  duties.  When  performed  the  law 
operates  upon  the  things  done  by  the  Board, 
while  unperformed,  the  law  remains  ready  to  be 
applied  whenever  the  preliminary  conditions  ex- 
ist.” 

Had  this  decision  been  written  for  the  case  at  bar 


—20— 


the  language  could  not  have  been  made  more  appro- 
priate. 

In  Pierce  vs.  Doolittle,  106  N.  W.  751;  6 L. 
R.  A.  (N.  S.)  143,  the  Supreme  Court  of  Iowa 
said:  “A  statute  prescribing  punishment  for 
violation  of  a regulation  of  the  State  Board  of 
Health  is  not  unconstitutional  on  the  theory  that 
legislative  power  to  create  crimes  is  thereby  del- 
egated to  the  Board.” 

In  BRODBINE  vs.  REVERE,  182  Mass.  598; 
66  N.  E.  607,  the  Massachusetts  Supreme  Court 
said : 

“The  validity  of  these  statutes  (a  law  passed  by 
the  Board  of  Health)  which  has  long  been  recog- 
nized, stands  upon  one,  or  both,  of  two  grounds: 
They  may  be  considered  as  being  within  the  prin- 
ciple permitting  local  self  government  as  to  such 
matters;  the  Board  of  Health  being  treated  as 
properly  representing  the  inhabitants  in  making- 
regulations,  which  often  are  needed  at  short  no- 
tice, and  which  could  not  be  well  made,  in  all 
kinds  of  cases,  by  the  voters  in  town  meeting 
assembled.  Perhaps  some  of  these  statutes  may 
also  be  justified  constitutionally  on  the  ground 
that  the  work  of  the  Board  of  Health  is  only  a 
determination  of  details  in  the  nature  of  admin- 
istration, which  may  be  by  a board  appointed  for 
that  purpose;  and  that  the  substantive  legislation 
is  that  part  of  the  statute  which  prescribes  a 
penalty  for  the  disobedience  of  the  rules  which 
they  make  as  agents  performing  executive  and 
administrative  duties.” 

Counsel  submits  that  if  this  Court  in  its  wisdom 
and  discretion  sees  fit  to  follow  the  long  line  of 
jurisprudence  holding  that  such  enactments  as  the 
Sanitary  Code  and  Pure  Food  and  Drug  Law  are 
made  in  an  administrative  or  executive  capacity,  then, 
in  that  event,  every  contention  of  opposing  counsel 
fails  and  the  conviction  of  the  accused  must  stand. 
There  are  two  great  safeguards  interposed  by  the 
law  between  the  indiscriminate  and  improvident  use 
of  the  powers  vested  in  administrative  boards  and 
the  people;  they  are: 


-21— 


First:  The  regulations  enacted  must  be 
necessary; 

and 

Second : The  regulations  must  be  reasonable. 

Neither  the  necessity  nor  the  reasonableness  of 
the  regulations  under  which  the  accused  was  charged, 
tried  and  convicted  are  questioned,  but  these  safe- 
guards are  always  in  the  hands  of  the  Court ; an  im- 
passable barrier  between  an  accused  and  oppression 
and  injustice. 

II. 

Counsel  for  the  accused  overlooks  the  peculiar  fact 
that  under  Act  192  of  1898  the  Board  of  Health  is 
given  all  of  the  powers  delegated  to  previous  Boards 
of  Health  (except  those  specifically  withheld  by  that 
act),  and  that  among  the  powers  delegated  was  that 
to  pass  ordinances  for  the  preservation  of  the  health 
of  the  people  and  the  sanitary  condition  of  the  State. 
Lying  at  the  gateway  of  the  tropics,  it  was  early  rec- 
ognized by  the  law-making  power  that  drastic  meas- 
ures were  necessary  to  protect  the  inhabitants  of 
this  section,  and  the  Legislature  saw  the  wis- 
dom and  prudence  of  entrusting  this  important  func- 
tion to  the  State  Board  of  Health  and  clothed  that 
body  with  extraordinary  powers  with  which  to  meet 
the  conditions  ever  present.  (See  Act  of  1855,  Act  14 
of  1870,  and  Act  80  of  1877.)  All  throughout  its  long 
and  useful  existence  the  State  Board  of  Health  has 
made  ordinances  and  rules  which  it  has  enforced  and 
has  been  upheld  in  the  making  and  enforcing  by  the 
Courts.  For  instance,  in  1901,  acting  under  Act  37  of 
1877,  the  Board  attempted  to  enforce  its  rules  rela- 
tive to  oil  inspection  against  the  Standard  Oil  Com- 
pany and  to  collect  from  that  corporation  a charge, 
or  fee,  for  inspecting  oil.  The  power  of  the  Board 
was  vigorously  resisted  and  the  case  was  finally 
taken  to  the  Supreme  Court  where  it  was  held  that 
the  rules  and  ordinances  of  the  Board  were  valid. 

LOUISIANA  STATE  BOARD  OF 
HEALTH  vs.  STANDARD  OIL  COMPANY, 
107  La.  713.  (Associate  Justice  Monroe  said: 
“The  rule  of  construction  applicable  to  the  char- 
ters of  municipal  corporations  is  equally  appli- 
cable to  the  charter  of  the  State  Board  of  Health. 


— 22 — 


As  to  municipal  corporations,  it  is  well  under- 
stood that  they  may  exercise  not  only  the  powers 
expressly  granted,  but  those  necessarily  or  fair- 
ly implied  in  or  incident  to  the  powers  express- 
ly granted,  and  also  those  which  are  essential  to 
the  declared  objects  and  purposes  of  the  cor- 
poration. 

“The  functions  for  the  discharge  of  which 
the  State  Board  of  Health  is  established  are  of 
vital  consequence  to  the  whole  people  of  the 
State,  affecting  them  in  the  manner  of  health  and 
safety;  and  there  is  no  reason  why  a narrower 
rule  of  construction  should  be  applied  to  the 
power  of  that  Board  than  to  those  of  corpora- 
tions of  comparatively  minor  importance.” 

In  another  case,  one  in  which  the  Board  attempted 
to  enforce  its  rules  and  ordinances  relative  to  quar- 
antine, these  enactments,  or  rather  what  was  done 
under  them,  was  upheld  by  the  Supreme  Court. 

COMPAGNIE  FRANCAISE  DE  NAVIGA- 
TION A VAPEUR  vs.  STATE  BOARD  OF 
HEALTH,  51  A.  645,  (on  page  662-664  new  ed.) 
Chief  Justice  Nicholls  says:  “The  defendant 
Board  is  not  an  ordinary  corporation.  It  is  a 
‘body  politic’  with  corporate  powers.  It  is  a 
governmental,  public  agency,  representing  the 
State  in  respect  to  the  matters  which  which  it 
stands  intrusted.” 

Counsel  has  called  attention  to  the  above  facts 
and  decisions  merely  for  the  purpose  of  illustrating 
the  well-known  fact  that  ordinances  and  enactments 
by  the  State  Board  of  Health  are  not  new  to  our 
people  and  that  when  the  Legislature  of  1898,  to  carry 
into  effect  Articles  296  and  297  of  the  Constitution 
of  that  year,  delegated  to  the  Board,  which  it  then 
constituted,  the  duty  and  function  of  preparing  a 
Sanitary  Code  and  Pure  Food  and  Drug  Law,  the 
legislation  came  as  in  no  sense  an  innovation  or  as  a 
radical  departure  from  the  fixed  und  consistent  pol- 
icy of  this  State  in  dealing  with  all  matters  concern- 
ing the  health,  sanitation  and  hygiene  of  the  com- 
monwealth by  and  through  the  State  Board  of  Health. 

Counsel  for  the  accused  contends  that  Arts.  16,  17 
and  21  of  the  Constitution  of  1898  provides  for  the 


—23— 


separate  and  distinct  organizations  of  the  Legisla- 
tive, Judicial  and  Executive  Departments  of  our 
State  Government ; and  as  nearly  as  counsel  can  ap- 
preciate  his  contention,  he  argues  that  NO  POWER 
of  any  of  these  departments  MAY  BE  DELE- 
GATED AT  ALL. 

In  so  far  as  the  police  power  of  a State  is  con- 
cerned, counsel  states  that  the  common,  well  settled 
and  thoroughlv  established  rule  is  as  follows: 

A STATE'  MAY  DELEGATE  ITS  POLICE 
POWER,  WHOLLY  OR  IN  PART,  TO  ONE  OR 
TO  NUMEROUS  GOVERNMENTAL  AGEN- 
CIES; PROVIDED  A STATE  MAY  NEVER  IR- 
REVOCABLY WHOLLY  DELEGATE  THIS 
POWER  SO  AS  TO  ENTIRELY  DIVEST  THE 
SAME  FROM  THE  STATE.  THAT  IS,  THE  PO- 
LICE POWER  OF  THE  STATE,  WHETHER 
EXPRESSED,  OR  MANIFESTED,  THROUGH 
THE  LEGISLATIVE,  JUDICIAL  OR  EXECU- 
TIVE BRANCHES  OF  THE  GOVERNMENT,  IS 
ALWAYS  SUPERIOR  TO  ANY  DELEGATED 
POLICE  POWER. 

Counsel’s  contention  was  long  since  disposed  of  in 
this  State  by  our  Supreme  Court,  as  an  inspection  of 
our  jurisprudence  will  show. 

Art.  16  of  the  Const,  of  1898  provides  division 
of  government  of  State  into  Legislative,  Execu- 
tive and  Judicial.  Same  provision  in  Const.  1812 
(Art.  1,  Sec.  1);  Const.  1845  (Title  1,  Art.  1); 
Const.  1852  (Title  1,  Art.  1.)  Art.  17,  Const,  oi 
1898,  provides  for  non-interference  of  any  of 
above  departments  with  the  other.  Same  pro- 
vision in  Const,  of  1812  (Art.  1,  Sec.  2) ; Const, 
of  1845  (Title  1,  Art.  2) ; Const,  of  1852  (Title  1, 
Art.  2);  Const.  1864  (Title  11,  Art.  4;  Const,  of 
1879  (Art.  15,)  Art.  21  of  1898  provides  that  the 
legislative  power  of  the  State  shall  be  vested  in 
a General  Assembly,  consisting  of  a Senate  and 
House  of  Representatives.  Same  provision  in 
Const,  of  1812  (Art.  2,  Sec.  1);  Const,  of  1845 
(Title  2,  Art.  1) ; Const,  of  1852  (Title  2,  Art.  3) ; 
Const,  of  1864  (Title  2,  Art.  5)  ; Const.  1879  (Art. 
19). 

Hence,  it  will  be  seen  that  Articles  16,  17  and 


—24— 


21  of  the  present  Constitution  have  always  found 
place  in  the  organic  law  of  Louisiana.  As  far 
back  as  New  Orleans  vs.  Morgan,  7 Martin  N.  S. 
5,  the  Supreme  Court  held:  “The  Constitution, 
in  distributing  the  executive,  legislative  and  ju- 
dicial powers,  has  reference  to  the  State  at  large; 
and  a law  granting  to  corporations  the  exercise 
of  subordinate  legislation  within  a particular  dis- 
trict over  its  members,  and  in  regard  to  their 
rights  and  duties  as  corporators,  and  a law  ren- 
dering a corporation  judge  of  the  validity  of  the 
election  of  its  members,  and  prohibiting  courts 
of  justice  from  interfering,  are  not  unconstitu- 
tional.” 

In  HUNSICKER  vs.  BRISCOE.  12  A.  169,  the 
argument  of  the  appellant  was : “All  legislative 
power  under  the  constitution  of  this  State,  is 
vested  in  the  Senate  and  House  of  Representa- 
tives, and  they  have  no  power  to  delegate  their 
authority  to  any  other  body,  for,  if  the  proposi- 
tion be  admitted  that  the  legislature  can  delegate 
a part  of  its  powers,  the  same  proposition  would 
hold  good  as  to  all  powers  conferred  by  the  con- 
stitution. Police  Juries  are  subordinate  to  the 
will  of  the  legislature,  and  whenever  they  are 
sustained  in  the  exercise  of  legislative  privileges, 
they  become  co-ordinate  departments  of  the  gov- 
ernment, and  cease  to  be  subordinate.” 

BUT  THE  SUPREME  COURT  TOOK  A 
DIFFERENT  VIEW.  Chief  Justice  Merrick 
said:  “The  Legislature  may  constitutionally  del- 
egate to  Police  Juries  authority  to  pass  all  such 
ordinances  as  they  may  deem  necessary  relative 
to  roads  and  levees,”  and  also  that:  “We  do  not 
understand  by  this  Article  of  the  Constitution 
that  the  General  Assembly  is  required  to  legislate 
upon  all  subjects,  whether  of  a general  or  local 
nature,  and  that  it  has  no  power  to  delegate  any 
legislative  authority  to  municipal  and  parochial 
authorities  and  other  inferior  jurisdictions.  We 
think  it  was  intended  merely  to  define  in  what 
bodies  the  supreme  legislative  power  should  be 
vested.  It  was  not  intended  as  a restriction  upon 
the  sovereignty  of  these  bodies.” 


—25— 


Having  seen  that  it  is  clearly  settled  that  a State 
may  delegate  its  authority  to  governmental  agencies, 
it  is  only  necessary  to  point  out  that  in  Standard  Oil 
Company  vs.  Louisiana  State  Board  of  Health  (107 
Lo.  713,  cited  hereinbefore)  the  Supreme  Court  has 
held  that  the  authority  could  be  properly  delegated 
to  the  Board  and  that  that  Board  could  make  rea- 
sonable ordinances,  or  rules,  to  accomplish  purposes 
intrusted  to  it  through  the  exercise  of  this  delegated 
legislative  power. 

“But,”  says  counsel  for  the  accused  “in  Indiana, 
from  whence  came  the  case  of  Isenhour  vs.  State, 
there  was  a specific  act  giving  authority  to  the  enact- 
ments of  the  Indiana  State  Board  of  Health. 

See  Acts  of  1899,  State  of  Indiana,  p.  189.  “An 
Act  forbidding  the  manufacture  and  sale  or  offer- 
ing for  sale  any  adulterated  foods  or  drugs.'' 
This  Act  makes  it  an  offense  for  one  to  have  for 
sale  any  food  adulterated  with  a substance  in- 
jurious to  health  and  EMPOWERS  THE 
STATE  BOARD  OF  HEALTH  TO  MAKE 
REGULATIONS  AS  TO  THE  MINIMUM 
STANDARD  OF  FOOD  AND  DRUGS. 

What  authority  has  the  Board  of  Health  of  the 
State  of  Louisiana? 

First:  The  Constitution  of  1898,  Articles  296  and 
297,  providing  for  the  creation  of  a State  Board  of 
Health  to  take  the  place  of  the  one  created  under 
the  Constitution  of  1879  and  making  it  obligatory 
and  mandatory  upon  the  Legislature  to  provide  for 
“PROTECTING  THE  PEOPLE  AGAINST  THE 
SALE  OF  INJURIOUS  OR  ADULTERATED 
DRUGS,  FOODS  AND  DRINKS,  AND  AGAINST 
ANY  AND  ALL  ADULTERATIONS  OF  THE 
GENERAL  NECESSARIES  OF  LIFE  OF  WHAT- 
EVER KIND  AND  CHARACTER.” 

Second : The  Act  192  of  1898  (and  amendments) 
which  says  that  the  State  Board  of  Health  “shall 
prepare  or  cause  to  be  prepared  a Sanitary  Code  for 
the  State  of  Louisiana,  which  shall  contain  and  pro- 
vide rules  and  regulations  and  ordinances  of  a gen- 
eral nature  for  the  improvement  and  amelioration 
of  the  hygienic  and  sanitary  condition  of  the  State 
* * * and  provide  for  it” — and  here  follows  specific 


— 26 — 


and  detailed  injunctions  as  to  what  the  Sanitary 
Code  shall  contain. 

An  amendment  in  1902  changed  the  method  of 
promulgation,  and  in  1906  (Act  98)  the  amendment 
allowing  the  revision  of  the  Sanitary  Code  and  the 
Pure  Food  and  Drug  Law  was  passed  and  it  was  also 
provided  that  the  standard  of  purity  and  strengths 
for  drugs,  chemicals  and  medicines  should  be  the 
United  States  Pharmacopoeia  and  National  Formu- 
lary. 

The  Court  will  bear  in  mind  that  there  is  no  ques- 
tion or  doubt  that  all  of  these  acts — of  1898,  of  1900, 
of  1902,  of  1904  and  of  1906 — were  properly  and 
regularly  promulgated  as  provided  for  by  the  Con- 
stitution; and,  hence,  they  were  binding  and  valid 
to  all  persons.  Did  not  this  promulgation  serve  as 
all  sufficient  notice  in  law  and  in  fact  as  to  all 
things  pertaining  to  these  acts,  and  was  it  not  per- 
fectly competent  for  the  Legislature  to  provide  some 
method  other  than  publication  at  Baton  Rouge,  in 
the  official  journal  of  the  State,  for  the  making 
known  by  the  Board  of  Health  of  the  regulations 
which  that  Board  drafted  under  the  mandate  from 
the  Legislature. 

The  Court  will  see  from  the  acts  in  question  that 
the  matters  with  which  the  Board  was  to  deal  per- 
tained to  and  affected  certain  definite  interests  as, 
for  instance,  the  drug  trade  or,  as  in  the  case  at  bar, 
the  manufacturer  of  “soft”  drinks.  Was  it  not  per- 
fectly reasonable  in  the  Legislature  to  assume  that 
which  is  a fact,  i.  e.,  if  the  Sanitary  Code  and  the 
Pure  Food  and  Drug  Law  were  so  published  at 
Baton  Rouge  knowledge  of  their  provisions  would 
be  very  limited;  but,  on  the  other  hand,  it  was  easier, 
more  preferable  and  certainly  more  practical  for 
those  at  interest  to  be  furnished  free  with  copies  of 
these  regulations  by  the  Board.  This,  counsel  takes 
it,  was  the  reasoning  of  the  Legislature,  and  counsel 
does  not  think  that  there  can  be  very  much  doubt  that, 
reasoning  in  this  manner,  the  Legislature  had  the 
constitutional  power  to  order  any  method  of  promul- 
gation, or  publication,  which  the  legislative  judg- 
ment deemed  sufficient. 

There  can  be  no  doubt  whatever  that  Article  42  of 


—27— 


the  Constitution  of  1898  applies  exclusively  to  stat- 
utes enacted  by  the  Legislature.  It  has  no  applica- 
tion to  those  laws  made  by  governmental  agencies 
such  as  municipalities,  boards  and  political  subdi- 
visions. For  instance,  to  hold  that  the  Sanitary 
Code  and  the  Pure  Food  and  Drug  Law  had  not 
been  legally  and  properly  promulgated  it  would  also 
be  necessary  to  hold  that  the  Legislature  IN  RE- 
SPECT TO  ENACTMENTS  OTHER  THAN 
STATE  LAWS  was  without  the  authority  to  pro- 
vide for  any  other  method  of  promulgation  than  that 
laid  down  in  Art.  42  of  the  Constitution  of  1898; 
this  would  mean  that  the  City  of  New  Orleans,  the 
City  of  Lake  Charles,  the  City  of  Alexandria,  would 
have  to  promulgate  their  ordinances  by  publishing 
them  at  Baton  Rouge,  and  this  is  an  absolute  absurd- 
ity. And  it  would  mean  that  every  ordinance  passedr 
by  the  Police  Juries  of  this  State  under  Act  315  of 
1908  was  totally  invalid  and  non-enforceable. 

“The  promulgation  of  laws  is  an  executive 
function  whose  mode,  prescribed  by  the  Legis- 
lature, differs  in  different  countries  and  at  dif- 
ferent times;  it  is  the  extrinsic  act  giving  a law, 
perfect  in  itself,  executory  force,  and  from 
whose  date  only  the  law,  unless  otherwise  pro- 
vided, is  presumed  executory,”  said  Judge  Spof- 
ford  in  State  vs.  Ellis  (12  A.  392).  “Promulgate. 
To  publish;  to  announce  officially;  to  make  pub- 
lic as  important  or  obligatory.”  Black’s  Law  Dic- 
tionary. 

Unless  the  Court  held  that  there  is  no  other  way 
than  that  provided  in  Art.  42  of  the  Constitution  to 
promulgate  a law  the  Sanitary  Code  and  Pure  Food 
and  Drug  Law  have  been  promulgated. 

As  the  Court  says  in  State  vs.  Ellis  (above), 
promulgation  has  varied  “in  different  countries  and 
at  different  times,”  for  in  this  State  in  early  days 
promulgation  was  effected  by  the  furnishing  to  the 
clerks  of  the  District  Courts  copies  of  the  law. 

Touching  the  contention  of  the  counsel  for  the  ac- 
cused relative  to  the  prohibition  of  Art.  33  of  the 
Constitution  of  1898  against  the  adoption  of  a sys- 
tem or  code  of  laws  by  reference,  counsel  would 


—28— 


suggest  that  nothing  of  the  kind  has  been  done  by 
the  State  Board  of  Health. 

There  is  apparently  but  one  case  on  the  subject  in 
the  State’s  jurisprudence:  State  vs.  DeHart,  109  La. 
570,  and  it  does  not  apply  fully  to  this  case. 

Neither  the  Legislature  nor  the  board  has  adopted 
a code  of  laws.  As  was  said  in  ISENHOUR  vs. 
STATE:  “The  law  itself  is  perfect  and  effective 
in  all  its  parts.  In  respect  to  matters  to  be  deter- 
mined by  the  State  Board  of  Health  in  its  execution, 
it  awaits  the  performance  of  these  duties.” 

III. 

Counsel  for  the  accused  has  stressed  to  the  Court, 
Ex  Parte  John  Cox,  63  Cal.  21,  WHICH  WAS  DE- 
CIDED THIRTY  YEARS  AGO.  Counsel  only  de- 
sires to  remark  that  this  case  is  so  obsolete  and  has 
been  so  often  contradicted  by  decisions  all  over  the 
United  States  that  he  is  surprised  at  his  learned 
opponent  quoting  it. 

IV. 

Counsel  submits,  in  conclusion : 

FIRST:  That  the  framing  of  the  Sanitary  Code 
and  the  Pure  Food  and  Drug  Law  was  an  administra- 
tive or  executive  function,  and  that  if  this  Court  so 
hold  every  contention  of  the  accused  must  fall  and 
his  conviction  stand; 

SECOND:  That  if  the  Court  hold  that  the  fram- 
ing of  the  Sanitary  Code  and  the  Pure  Food  and 
Drug  Law  was  the  exercise  of  a legislative  func- 
tion, then,  even  in  this  event,  the  conviction  must 
stand,  since  under  the  Constitution  and  jurispru- 
dence of  the  State  the  Legislature  had  the  power  to 
delegate  such  authority  to  the  State  Board  of  Health. 

THIRD:  That  if  the  Board  did  exercise  a legis- 
lative function,  Art.  42  of  the  Constitution  applies 
only  to  the  promulgation  of  State  statutes,  and  it  was 
competent  for  the  Legislature  to  fix  some  other 
method  for  the  promulgation  of  the  Sanitary  Code 
and  the  Pure  Food  and  Drug  Law. 

Respectfully  submitted, 

BENJAMIN  T.  WALDO, 
Attorney  for  Louisiana  State  Board  of  Health 


— 29 — 


JUDGE  F.  D.  CHRETIEN’S  OPINION. 


The  case  went  on  appeal  from  the  Second  City  Crimi- 
nal Court  of  New  Orleans  to  the  Criminal  Dis- 
trict Court  for  the  Parish  of  Orleans  and  was 
argued  at  length  orally  and  by  brief  before 
Judge  Chretien  in  the  latter  Court.  Judge 
Chretien  gave  full  reasons  for  sustaining 
the  contentions  of  the  Board's  attor- 
torney  and  Judge  Chretien's  opinion 
here  follows: 

STATE  OF  LOUISIANA. 

CRIMINAL  DISTRICT  COURT  FOR  THE  PAR- 
ISH OF  ORLEANS. 

DIVISION  B. 

STATE  OF  LOUISIANA 
versus 

LARRY  H.  SNYDER. 


REASONS  FOR  OVERRULING  DEMURRER 
AND  FOR  AFFIRMING  JUDGMENT  OF 
LOWER  COURT. 

In  September,  1911,  an  affidavit  was  filed  by  one 
J.  A.  Kane,  charging  Larry  E.  Snyder,  on  the  18th 
day  of  September,  1911,  with  having  sold  or  caused 
to  be  sold,  with  the  knowledge  and  intent  that  the 
same  should  be  used  as  a beverage,  or  for  human 
consumption,  and  with  the  knowledge  that  the  same 
was  sweetened  with  saccharin,  and  contained  sac- 
charin, to  one  Mrs.  U.  Nuss,  a bottled  drink,  or  bev- 
erage, known  as  “pop,”  or  sarsaparilla  jumbo,  in  vio- 
lation of  Regulation  37  of  the  Pure  Food  and  Drug 
Law  of  Louisiana,  as  promulgated  by  the  Louisiana 
State  Board  of  Health  under  and  by  authority  of  Act 
192  of  1898,  contrary  to  the  statute,  etc. 


—30— 


Regulation  37  reads  as  follows: 

“The  use  of  saccharin  in  any  food  product  is 
prohibited.” 

To  this  affidavit  a demurrer  was  filed  by  defend- 
ant,  alleging  as  matters  of  defense: 

(1)  “That  the  said  affidavit  and  charge,  and 
the  matters  therein  contained,  fail  to  set  up  any 
acts  or  things  in  violation  of  the  criminal  laws 
and  statutes  of  this  State.” 

(2)  “That  Acts  192  of  1898;  150  of  1902;  184  of 
1904;  and  98  of  1906,  as  well  as  the  Sanitary 
Code  thereunder,  and  all  amendments  thereto, 
as  well  as  all  amendments  of  the  acts  of  the 
aforementioned  acts  of  the  Legislature,  and  all 
acts  amended  thereby  are  illegal  and  unconsti- 
tutional, for  the  following  reasons,  amongst 
others : 

(a)  “That  the  said  acts  and  the  Sanitary  Code 
under  which  this  proceeding  is  brought,  violate 
and  are  contradictory  of  the  provisions  of  Ar- 
ticles 16,  17  and  21  of  the  Constitution  of  this 
State  passed  and  adopted  in  the  year  1898,  and 
that  the  Legislature  is  without  power  in  law  to 
delegate  its  law  making  power  and  authority  to 
an  individual  or  body  of  individuals,  whether 
corporate  or  incorporate,  so  as  to  give  the  same 
power  to  designate  and  define  and  determine 
what  are  and  what  are  not  crimes  and  misde 
meanors. 

(b)  “That  the  said  acts  and  said  Sanitary  Code 
under  which  this  proceeding  is  brought  violate 
and  are  contradictory  to  the  provisions  of  Ar- 
ticle 33  of  the  Constitution  of  this  State  for  the 
year  1898,  which  said  article  declares  that  no 
system  or  code  of  laws  can  be  adopted  by  refer- 
ence to  such  system  or  code  of  laws. 

(c)  “That  said  acts  and  said  Sanitary  Code 
under  which  this  proceeding  is  brought  violate 
and  are  contradictory  to  the  provisions  of  Ar- 
ticle 42  of  the  Constitution  of  this  State  for  the 
year  1898,  which  provided  for  the  promulgation 
of  all  laws  before  the  same  become  effective; 
that  the  said  Sanitary  Code  was  never  promul- 
gated and  even  if  constitutional,  which  is  denied, 


-31— 


the  same  never  having  been  promulgated  as  pro- 
vided by  law,  said  acts  and  said  Sanitary  Code 
never  became  a law,  and  is  now  not  effective, 
and  the  defendant  should  not  be  held  to  answer 
to  the  charges  made  against  him.” 

The  first  ground  to  be  considered  is  whether  by 
the  legislative  acts  which  will  hereafter  be  enumerat- 
ed, insofar  as  they  apply  to  this  case,  the  Legislature 
of  the  State  conferred  upon  the  State  Board  of  Health 
any  of  its  legislative  powers. 

Article  296  of  the  Constitution  of  1898  provides: 

“The  General  Assembly  shall  create  for  the 
State,  and  for  each  parish  and  municipality  there- 
in, Boards  of  Health,  and  shall  define  their 
duties,  and  prescribe  the  powers  thereof.  The 
State  Board  of  Health  shall  be  composed  of  rep- 
resentative physicians  from  the  various  sections 
of  the  State.  Until  otherwise  provided  by  law, 
both  the  President  and  Secretary  of  the  State 
Board  of  Health  shall  be  ex-officio  members  of 
the  Board  of  Health  of  the  City  of  New  Orleans, 
the  President  of  the  State  Board  of  Health  to  be 
President  of  the  local  Board  of  Health  of  New 
Orleans.” 

Article  297  provides: 

“The  General  Assembly  shall  provide  for  the 
interest  of  State  medicine  in  all  its  departments; 
for  the  protection  of  the  people  from  unquali- 
fied practitioners  of  medicine,  and  dentistry; 
protecting  confidential  communications  made,  to 
medical  men  by  their  patients  while  under  pro- 
fessional treatment ; for  the  protection  of  the 
people  against  the  sale  of  injurious  or  adulterated 
drugs,  foods  and  drinks,  and  against  any  and  all 
adulterations  of  the  general  necessaries  of  life 
of  whatever  kinds  and  character.” 

In  furtherance  of  this  mandate  of  the  Constitution, 
the  Legislature  undertook  by  Act  192  of  1898,  to 
carry  out  the  above  constitutional  directions. 

Section  one  creates  the  State  Board  of  Health  and 
provides  who  the  members  thereof  shall  be;  fixes 
their  qualifications  and  their  pay,  and  the  mileage 
and  per  diem. 

Section  two  provides  for  the  appointment  of  the 


— 32 — 


President  of  said  Board,  fixes  his  salary  and  his 
term  of  office;  provides  that  at  its  first  meeting  said 
Board  shall  elect  a suitable  person,  other  than  a mem- 
ber of  the  Board,  to  be  secretary  and  treasurer,  and 
fixes  the  salary  of  the  said  officer.  It  further  de- 
termines the  duties  and  powers  of  the  president  and 
secretary  and  treasurer. 

Section  three  reads  as  follows: 

“That  said  Board  shall  have  all  the  powers, 
authority  and  jurisdiction  now  possessed  by  the 
existing  State  Board  of  Health  under  present 
laws  now  in  force,  except  in  so  far  as  modified 
and  changed  by  the  provisions  of  this  act.  It 
shall  have  exclusive  jurisdiction,  control  and  au- 
thority over  maritime  quarantine  within  the 
State,  as  now  provided  by  existing  laws  of  the 
State.  It  shall  have  supervisory  power  over  land 
quarantine,  and  over  the  care  and  control  of  in- 
fectious and  contagious  diseases  within  the 
State  in  order  to  accomplish  the  subsidence  and 
suppression  thereof,  and  to  prevent  the  spread 
of  the  same.  Such  supervision  and  control  shall 
be  exercised  in  the  manner  and  to  the  extent 
hereinafter  laid  down  in  this  act.  It  shall  pre- 
pare or  cause  to  he  prepared  a Sanitary  Code  for 
the  State  of  Louisiana , which  shall  contain  and 
provide  rules  and  regulations  and  ordinances  of 
a general  nature  for  the  improvement  and  ameli- 
oration of  the  hygienic  and  sanitary  condition 
of  the  State..  On  the  adoption  of  the  said  code 
by  the  Board,  it  shall  be  published  at  length  and 
in  full  in  at  least  one.  newspaper  in  the  City  of 
New  Orleans,  and  in  the  official  journal  of  the 
State  Capitol,  on  ten  successive  and  consecutive 
days,  and  shall  also  be  printed  and  published  in 
pamphlet  form  with  such  numbers  of  copies  as 
may  be  necessary  for  the  distribution  for  infor- 
mation of  health  bodies,  health  and  sanitary  of- 
ficers and  the  public  generally.  When  so  print- 
ed said  code  shall  cover  and  provide  for,  espe- 
cially, land  and  maritime  quarantine  regulations ; 
the  reporting,  care  and  management  of  cases  of 
infectious  and  contagious  diseases;  it  shall  reg- 
ulate the  manner  of  keeping  and  reporting  and 


—33— 


tabulating  vital  and  mortuary  statistics;  it  shall 
provide  for  affording  facilities  for  vaccination, 
provided  the  same  shall  not  be  made  compul- 
sory, except  of  children  attending  the  public 
schools ; it  shall  regulate  the  carriage  and  trans- 
portation of  persons,  freight  and  dead  bodies 
brought  into  the  State  or  transported  through  or 
in  the  State  in  so  far  as  the  same  may  affect  the 
public  health.  It  shall  provide  lor  the  carrying 
out  of  the  laws  of  the  State  in  regard  to  the  adul- 
teration of  articles  intended  for  human  food  or 
consumption;  it  shall  provide  for  the  inspection 
of  meats,  milk,  coal  oil  and  other  articles  affect- 
ing the  public  health  and  safety,  where  and  when 
the  same  may  be  brought  into  one  parish  from 
another,  or  from  outside  of  the  State,  leaving  to 
the  local  boards  hereinafter  provided,  the  reg- 
ulation of  the  sale  or  offering  for  sale  of  said 
articles  within  the  parish  or  municipality  to 
which  the  same  may  be  brought,  and  the  said  code 
shall  contain  general  rules  in  regard  to  such 
health,  sanitary  and  hygienic  subjects,  as  can- 
not in  the  opinion  of  the  State  Board  of  Health 
be  efficiently  and  effectively  regulated  by  local 
boards.  # * *” 

Sections  1,  3,  4 and  5 of  Act  192  of  1898,  creating 
the  State  Board  of  Health,  were  amended  by  Act  150 
of  the  sessions  of  the  Legislature  of  1902,  but  the 
amendment  to  section  three  of  said  act  alone  need  be 
considered  in  this  case,  and  only  that  portion  of  it 
which  applies  to  the  Sanitary  Code: 

“It  shall  prepare,  or  cause  to  be  prepared,  a 
Sanitary  Code  for  the  State  of  Louisiana,  which 
shall  contain  and  provide  rules,  regulations  and 
ordinances  of  a general  nature  for  the  improve- 
ment and  amelioration  of  the  hygienic  and  sani- 
tary condition  of  the  State.  On  the  adoption 
of  said  code  by  the  Board  it  shall  be  printed  and 
published  in  pamphlet  form  with  such  numbers 
of  copies  as  may  be  necessary  for  distribution 
for  information  of  health  bodies,  health  and  sani- 
tary officers  and  the  public  generally.” 

Under  the  provisions  of  Act  98  of  1906,  the  Legis- 
lature, in  Section  one  of  said  act,  provided: 


—34— 


“That  the  State  Board  of  Health  of  the  State 
of  Louisiana,  be,  and  is  hereby  authorized  and 
empowered  in  order  to  further  carry  into  effect 
Article  297  of  the  Constitution  of  1898,  to  revise 
the  sanitary  code  provided  for  by  Section  3 of 
Act  192  of  1898,  and  to  incorporate  therein  rules 
and  regulations  governing  the  manufacture,  sale 
and  inspection  of  foods,  liquors,  waters  and 
drugs  in  the  State  in  so  far  as  the  same  may  af- 
fect the  public  health;  to  fix  standards  of  pur- 
ity; to  provide  for  the  collection  of  samples  and 
the  entering  of  premises  for  this  purpose;  to  pro- 
vide for  the  establishment  of  a laboratory  for 
the  analysis  of  foods,  liquors,  drugs  and  water; 
to  employ  an  analyst  and  assistants,  and  fix  and 
pay  their  compensation;  and  to  do  all  other  acts 
as  may  be  requisite  and  proper  to  carry  this  act 
into  effect  * * *” 

Section  2.  “Be  it  further  enacted,  etc.,  that 
the  power  to  further  revise  and  amend  said  Sani- 
tary Code  is  hereby  conferred  on  said  State 
Board  of  Health  for  the  State  of  Louisiana,  pro- 
vided that  any  revisions  or  amendments  adopted 
by  said  Board,  shall,  before  going  into  effect,  be 
promulgated  in  the  same  manner  as  is  required 
by  existing  law  for  the  Sanitary  Code.” 

Section  three  provides: 

“That  any  person  violating  any  of  the  pro- 
visions of  said  Sanitary  Code,  shall,  on  convic- 
tion by  any  court  of  competent  jurisdiction,  be 
fined  not  less  than  ten  nor  more  than  two  hun- 
dred dollars  for  the  first  offense,  nor  less  than 
twenty-five  nor  more  than  four  hundred  dollars 
for  the  second  offense;  nor  less  than  fifty  nor 
more  than  five  hundred  dollars,  or  imprisonment 
for  not  less  than  ten  days  nor  more  than  six 
months,  or  both,  in  the  discretion  of  the  Court, 
for  each  subsequent  offense.” 

Thus  it  will  be  seen  that,  in  furtherance  of  the 
constitutional  mandate  above  stated,  the  Legislature, 
in  1898,  adopted  an  act  creating  the  State  Board  of 
i Health,  providing  for  the  qualifications  of  its  mem- 
bers and  defining  the  duties  of  said  board. 

Under  the  provisions  of  Section  3 of  said  Act,  it 


—35— 


gives  the  Board  the  power  to  prepare  or  cause  to 
be  prepared  a Sanitary  Code  for  the  State,  which  shall 
provide  rules,  regulations  and  ordinances  of  a gen- 
eral nature  for  the  improvement  and  amelioration  of 
the  hygienic  and  sanitary  condition  of  the  State;  it 
provided  for  the  publication  of  said  code,  but  omit- 
ted to  provide  any  penalty  for  the  disobedience  of 
the  rules,  regulations  and  ordinances  adopted  by  said 
Board. 

By  Act  150  of  1902,  amendatory  of  said  Act  of  1898, 
the  mode  of  publication  and  promulgation  as  provid- 
ed in  Act  98,  was  changed  so  as  to  allow  the  Board 
of  Health  to  promulgate  said  code  by  publishing,  or 
causing  to  be  published  in  pamphlet  form  the  code 
thus  adopted  by  said  Board,  and  provided  for  the 
manner  of  distributing  the  same. 

As  will  be  noticed  in  Act  192  of  1898,  as  well  as 
Act  150  of  1902,  no  penalties  were  imposed  for  the 
violation  of  the  rules,  regulations  and  ordinances  of 
said  Board,  or  for  the  violation  of  said  health  code, 
and  that  A^ct  150  of  1904  provided  penalties  for  the 
violation  of  any  of  the  rules,  regulations  and  ordi- 
nances of  said  Board. 

An  examination  of  these  acts  clearly  demonstrates 
that  as  Legislative  Acts  they  were  properly  promul- 
gated under  and  in  accordance  with  the  rules  and 
regulations  of  the  Constitution  providing  for  the 
promulgation  of  such  acts. 

The  question  then  to  be  determined,  on  the  first 
part  of  the  demurrer,  is  whether  the  constitutional 
provision  relating  to  the  promulgation  of  acts  ap- 
plied with  equal  force  to  rules,  regulations  and  or- 
dinances, and  Health  Codes  adopted  by  the  Board  of 
Health,  and  whether  the  Legislature  by  Act  192  of 
1898,  and  acts  amendatory  thereof,  delegated  any 
legislative  powers  to  the  State  Board  of  Health. 

Article  42  of  the  Constitution  reads  as  follows: 

“No  law  passed  by  the  General  Assembly , ex- 
cept the  General  Appropriation  Act,  or  act  ap- 
propriating money  for  the  expenses  of  the  Gen- 
eral Assembly,  shall  take  effect  until  promul- 
gated. Laws  shall  be  considered  promulgated 
at  the  place  where  the  State  Journal  is  published, 
the  day  after  the  publication  of  such  law  in  the 


—36— 


State  Journal,  and  in  all  other  parts  of  the  State 
twenty  days  after  such  publication.  The  State 
Journal  shall  be  published  at  the  capital.” 

It  will  be  noticed  that  this  article  of  the  Constitu- 
tion deals  with  laws  passed  by  the  General  Assembly. 

In  the  case  of  Isenhour  vs.  State,  from  Indiana, 
reported  in  the  62nd  North-Western  Report- 
er, at  page  40,  the  defendant  was  charged  with  hav- 
ing in  his  possession  with  intent  to  sell  the  same,  one 
pint  of  milk  adulterated  with  formaldehyde.  A mo- 
tion to  quash  was  filed,  because  it  was  alleged  that 
the  act  under  which  the  prosecution  was  had  violated 
the  following  provisions  of  the  State  Constitution 
of  Indiana,  viz.: 

“First.  Section  21,  Article  1,  which  provides 
that  ‘no  man’s  property  shall  be  taken  by  law 
without  just  compensation.’  ” 

“Second.  Section  25,  Article  1,  which  provides 
that  ‘no  law  shall  be  passed,  the  taking  effect  of 
which  shall  be  made  to  depend  upon  any  author- 
ity except  as  provided  in  the  Constitution,’  ” 
“Third.  Section  19,  Article  4,  which  provides 
that  ‘every  act  shall  embrace  but  one  subject  and 
matters  properly  connected  therewith;  which 
subject  shall  be  embraced  in  the  title.’  ” 

The  motion  to  quash  was  overruled.  After  elimi- 
nating the  first  and  third  grounds  of  the  motion,  as 
having  no  application  to  the  case,  the  Supreme  Court 
of  Indiana  goes  into  a full  analysis  of  the  second 
ground,  viz. : “That  no  law  shall  be  passed,  the  tak- 
ing effect  of  which  shall  be  made  to  depend  upon  any 
authority,  except  as  provided  in  the  Constitution.” 

The  Legislature  of  Indiana  adopted  in  1899  at 
page  189  of  said  acts,  what  is  known  as  the  “Pure 
Food  Law.”  In  it  certain  duties  are  imposed  on 
the  State  Board  of  Health  in  which  the  said  Board  is 
given  powers,  similar  in  nearly  every  respect  to  those 
given  to  the  State  Board  of  Health  in  this  State; 
among  them  the  duty  of  making  a Pure  Food  Code. 

The  act  provided  for  the  punishment  for  the  vio- 
lations of  its  provisions,  and  that  of  the  code  as 
adopted  by  the  Board  of  Health.  The  question  in 
that  case,  as  in  this  case,  was  that  the  ordinances, 
rules  and  regulations,  and  Health  Code  of  the  Board 


—37— 


of  Health  were  adopted  and  made  operative  only 
after  the  passage  of  the  act  of  1899,  and  could  not 
be  covered  by  that  act.  That  the  delegation  of  power 
by  the  Legislature  to  the  Board  of  Health  was  legis- 
lative, and  was,  therefore,  beyond  the  power  of  that 
body  to  delegate  to  any  other  body;  that  the  meas- 
ures adopted  by  the  Board  for  the  enforcement  of 
the  act  of  1899  were  legislative,  and  as  all  legislative 
powers  were,  under  the  Constitution,  vested  in  the 
State  Legislature  alone,  that  the  act  was  unconstitu- 
tional and  ineffective. 

The  Court,  in  passing  upon  these  objections,  used 
the  following  language,  which,  in  my  opinion,  is  con- 
clusive of  the  controversy  in  the  present  case: 

“Does  the  act  violate  Section  25,  Article  21, 
providing  that  ‘no  law  shall  be  passed,  the  taking 
effect  of  which  shall  be  made  to  depend  upon 
any  authority  except  as  provided  in  the  Consti- 
tution/ The  Pure  Food  Law  provides  that 
‘within  ninety  days  after  the  passage  of  this 
act  the  Board  of  Health  shall  adopt  such  meas- 
ures as  may  be  necessary  to  facilitate  the  en- 
forcement thereof,  and  shall  prepare  rules  and 
ordinances  where  and  when  necessary  regulating 
minimum  standards  of  foods  and  drugs,  defining 
specific  adulterations,  and  declaring  the  proper 
methods  of  collecting  and  examining  drugs  and 
articles  of  food.’  From  this  provision  it  is  ar- 
gued that  the  law  could  not  become  effective  and 
‘could  not  be  violated  until  the  State  Board  met, 
within  ninety  days,  prepared  its  rules  and  passed 
its  ordinances  regulating  minimum  standards,  de- 
fining adulterations,  and  declaring  the  methods 
of  collecting  and  examining  foods,’  and,  in  sub- 
stance, an  attempted  delegation  of  legislative 
power  to  the  State  Board  of  Health.  The  ob- 
vious purpose  of  the  provision  last  quoted  was 
to  commit  to  a body  of  learned  and  scientific 
experts  the  duty  of  preparing  such  rules  and  pre- 
scribing such  tests  as  may,  from  time  to  time, 
in  the  enforcement  of  the  law,  be  found  neces- 
sary in  determining  what  combination  of  sub- 
stances are  injurious  to  health,  and  to  what  ex- 
tent, if  at  all,  admixtures  or  deteriorations  of 


— 38 — 


foods  and  drugs  may  go  without  injuriously  af- 
fecting the  health  of  the  consumer.  That  which 
is  required  of  the  State  Board  of  Health  has  no 
semblance  to  legislation.  It  merely  relates  to  a 
procedure  in  the  law’s  execution  for  a reliable 
and  uniform  ascertainment  of  the  subjects  upon 
which  the  law  is  intended  to  operate.  Nor  does 
the  duty  imposed  upon  the  State  Board  in  any 
sense  postpone  the  taking  effect  of  the  law  until 
the  duty  is  performed.  Performance  can  never 
be  said  to  be  complete.  The  duty  is  continuing, 
and  will  arise  at  any  time  when  a new  food  or 
drug  is  put  forward.  Besides,  it  is  paradoxical 
to  say  that  the  law  is  not  effective  until  the 
State  Board  has  acted,  when  it  is  certain  that 
without  the  law  they  could  not  act  at  all.  And 
to  say  that  their  act  puts  the  law  in  operation  is 
to  excuse  them  from  acting,  because  no  law  re- 
quires it.  This  class  of  legislation  emanates 
from  an  exercise  of  the  police  power  of  the  State 
for  the  protection  of  the  public  health.  The  pow- 
er of  the  Legislature,  and  its  right  to  determine 
for  itself  when  an  emergency  for  such  legislation 
exists,  and  the  means  and  instrumentalities  neces- 
sary to  accomplish  the  end  in  view,  is  no  longer 
a doubtful  question.  The  particular  character  of 
the  subject,  embodying  as  it  does  considerations 
of  sanitary  science,  is  such  as  to  require  for  just 
legal  control  something  more  than  legislative 
wisdom  to  accurately  designate  the  subjects  and 
instances  intended  to  be  affected.  The  classifi- 
cation of  these  subjects,  and  the  prescribing  of 
rules  by  which  they  may  be  determined  by  a 
qualified  agent,  is  not  legislation,  but  merely  the 
exercise  of  administrative  power.  The  law  itself 
is  perfect  and  effective  in  all  its  parts.  In  re- 
spect to  the  matters  to  be  determined  by  the 
State  Board  of  Health  in  its  execution  it  awaits 
the  performance  of  these  duties.  When  per- 
formed, the  law  operates  upon  the  things  done 
by  the  Board.  While  unperformed,  the  law  re- 
mains ready  to  be  applied  whenever  the  prelimi- 
nary condition  exists.  It  is  said  in  Blue  vs. 
Beach,  155  Ind.  121,  36  N.  E.  89,  on  page  130,  155 


—39— 


Ind.,  and  page  92,  56  N.  E.:  “In  order  to  secure 
and  promote  the  public  health,  the  State  creates 
boards  of  health  as  an  instrumentality  or  agency 
for  that  purpose,  and  invests  them  with  the 
power  to  adopt  ordinances,  by-laws,  rules  and 
regulations  necessary  to  secure  the  objects  of 
their  organization.  While  it  is  true  that  the  char- 
acter or  nature  of  such  boards  is  administrative 
only,  still  the  powers  conferred  upon  them  by  the 
Legislature,  in  view  of  the  great  public  interest 
confided  to  them,  have  always  received  from  the 
Courts  a liberal  construction,  and  the  right  of  the 
Legislature  to  confer  upon  them  the  power  to 
make  reasonable  rules,  by-laws  and  regulations 
is  generally  recognized  by  the  authorities.”  See, 
also*  Overshiner  vs.  State,  156  Ind.  187,  59  N.  E. 
468,  51  L.  R.  A.  748;  State  vs.  Board  of  Phar- 
macy, 155  Ind.  414,  58  N.  E.  531 ; Groesch  vs. 
State,  42  Ind.  547,  556;  Railroad  Co.  vs.  Geiger, 
34  Ind.  185,  220.” 

In  the  case  of  Moses  B.  Polinski,  plaintiff  in  error, 
vs.  People  of  New  York  City,  defendants  in  error; 
that  was  an  indictment  containing  three  counts. 

The  first  count  charged  defendant  with  exposing 
for  sale  in  the  City  of  New  York  impure  and  un- 
wholesome milk  adulterated  with  water,  against  the 
form  of  the  statute. 

The  second  count  charges  that  he  kept  and  offered 
for  sale  milk  in  violation  of  the  code  and  of  the  stat- 
ute. 

The  third  count  charged  him  with  bringing  it  into 
the  City  of  New  York  for  sale  in  violation  of  an  or- 
dinance of  the  Sanitary  Code  passed  by  the  Board  of 
Health  of  the  City,  February  23rd,  1876,  and  of  which 
due  public  notice  is  alleged,  and  is  set  out  in  the 
count  in  full. 

“By  section  one  of  chapter  467  of  the  Laws  of 
New  York  of  1862,  entitled  an  act  to  prevent  the 
adulteration  of  milk,  and  to  prevent  the  traffic 
in  injurious  and  unwholesome  milk,  as  amended 
by  Section  1 of  Chapter  545  of  the  laws  of  1864, 
the  knowingly  selling  or  exposing  for  sale  im- 
pure, adulterated  or  unwholesome  milk  is  made 
a misdemeanor  punishable  by  a fine  of  not  less 


•40— 


than  fifty  dollars,  and  if  the  fine  is  not  paid,  by 
imprisonment  for  not  less  than  thirty  days  in 
the  penitentiary,  or  county  jail,  or  until  the  fine 
is  paid.” 

The  statute  is  of  general  application  throughout 
the  State  of  New  York. 

The  Board  of  Health  of  the  City  of  New  York,  Feb- 
ruary 23rd,  1876,  enacted  an  ordinance  and  made  it 
part  of  the  Sanitary  Code,  as  follows: 

“No  milk  which  has  been  watered,  adulterated, 
reduced  or  changed  in  any  respect  by  the  addi- 
tion of  water  or  other  substance,  or  by  removing 
of  cream,  shall  be  brought  into  the  City  of  New 
York,  nor  shall  any  one  keep  or  offer  for  sale 
any  such  milk.” 

The  ordinance  of  the  Board  of  Health  was  attacked 
on  the  ground  that  it  was  an  unconstitutional  delega- 
tion of  legislative  authority,  and  that  the  ordinance 
of  the  Board  of  Health  of  the  City  of  New  York  was, 
for  that  reason,  unconstitutional. 

In  passing  upon  the  question,  the  Supreme  Court 
of  New  York  used  the  following  language : 

“That  the  Legislature  in  the  exercise  of  its 
constitutional  authority  may  lawfully  confer  on 
Boards  of  Health  the  power  to  pass  sanitary 
ordinances  within  which  their  jurisdiction  ex- 
tends, is  not  an  open  question;  this  power  has 
been  repeatedly  recognized  and  affirmed.” 

Quoting  many  authorities. 

“An  ordinance  that  is  designed  to  prevent  the 
sale  of  adulterated  milk  is  manifestly  within  the 
scope  of  sanitary  regulations.” 

In  the  case  of  Edward  Leeper  vs.  State  of  Tennes- 
see, 48  Lawyers’  Reports  Annotated,  page  167,  the 
following  occurs : 

“The  defendant  was  convicted  of  violating  the 
provisions  of  Act  1899,  Chapter  205,  commonly 
known  as  the  uniform  textbook  act,  and  sen- 
tenced to  pay  a fine  of  ten  dollars  and  costs,  and 
has  appealed.” 

“The  caption  of  the  act  under  which  convic- 
tion is  had  thus  expresses  the  object  and  subject 
matter  of  the  law,  to-wit:  An  act  to  authorize  a 
Textbook  Commission  and  to  procure  for  use  in 


— 41 — 


the  public  schools  in  this  State  a uniform  system 
or  series  of  textbooks;  to  define  the  duties  and 
powers  of  said  commission,  etc.,  etc.” 

“Under  the  act  a Board  was  accordingly  creat- 
ed, and  to  it  devolved  the  duty  of  selecting  and 
adopting  a uniform  system  or  series  of  textbooks 
for  use  in  the  public  schools  of  the  State.” 

All  necessary  powers  are  given  to  the  Board  to  de- 
termine what  books  shall  be  used  in  the  schools,  for 
the  advertising  for  bids  for  the  furnishing  of  books, 
authorizing  the  executive,  as  soon  as  the  contracts 
have  been  entered  into,  to  issue  his  proclamation  an- 
nouncing such  fact  to  the  people  of  the  State,  a de- 
pository to  be  designated  by  the  commirsion,  where 
a supply  of  books  to  meet  the  immediate  demand 
shall  be  kept,  etc.,  etc.,  and  the  law  makes  it  a misde- 
meanor for  any  teacher  to  use,  or  permit  to  be  used, 
in  his  or  her  school,  any  textbooks  except  those  adopt- 
ed by  the  commission,  and  fixes  as  a punishment  for 
the  same,  a fine  of  not  less  than  ten  dollars  nor  more 
than  fifty  dollars. 

To  the  affidavit  made  against  the  defendant  a de- 
murrer was  filed,  in  which  it  is  insisted  that  the  act 
is  unconstitutional,  because: 

(1)  It  allows  a monopoly. 

(2)  It  delegates  legislative  powers. 

(3)  It  denies  local  self-government. 

In  passing  upon  the  question,  the  Supreme  Court 
used  the  following  language : 

“The  next  objection  urged  is  that  the  act  dele- 
gates legislative  powers  to  the  commission,  and 
to  the  executive  of  the  State.  The  main  pro- 
visions of  the  act  which  bear  upon  the  question 
are  those  which  provide  that  the  commission  may 
select  books,  make  contracts  for  obtaining  them 
and  perfect  the  details  of  the  general  plan  in  pro- 
viding all  schools  with  the  books  chosen,  and  ob- 
tain for  the  pupils  and  patrons  the  lowest  price 
possible.” 

“If  we  grant  that  the  Legislature  has  the  power 
to  prescribe  and  enforce  the  system,  since  it  is 
one  that  requires  the  adjustment  of  many  details, 
it  is  evident  that  such  details  can  only  be  carried 
out  by  a commission.  In  such  cases,  the  Legis- 


■42— 


lature  can  only  act  through  Boards  or  Commis- 
sions or  other  agencies,  and  there  can  be  no  val- 
id objection  unless  legislative  power  is  conferred 
upon  the  Board.  * * *” 

“It  (the  State)  does  not  delegate  legislative 
power ; that  is,  any  power  to  pass  or  annul  a law. 
There  is  a difference  between  the  delegation  of 
power  to  make  laws  involving,  necessarily,  a dis- 
cretion as  to  what  they  shall  be,  and  a grant  of 
authority  relating  to  their  execution,  though  the 
latter  may  involve  the  exercise  of  discretion  to, 
and  in  pursuance  of  the  law.  (6  Am.  and  Eng. 
Ency.  of  Law,  second  edition  1029). 

“Merely  administrative  and  executive  func- 
tions may  be  delegated.” 

Cinn.  W.  & Z.  R.  Co.  vs.  Clinton  County  Com- 
mission, 1 Ohio  State,  88. 

“The  difference  between  the  power  to  pass  a 
law  and  the  power  to  adopt  rules  or  regulations 
to  carry  into  effect  a law  already  passed  is  ob- 
vious.” 

Ga.  R.  R.  Co.  vs.  Smith,  70  Ga.  694. 

“The  Legislature  cannot  delegate  its  power  to 
make  a law,  but  it  can  make  a law  to  delegate 
the  power  to  determine  some  facts  or  state  of 
things  upon  which  the  law  makes,  or  intends  to 
make,  its  own  action  depend.” 

Locke’s  Appeal,  72  Pa.  498,  13  Am.  Rep.  716. 

In  the  case  of  Frank  E.  Blue  vs.  Fannie  M.  Beach; 
this  was  an  action  by  the  appellant  Blue  to  enjoin 
Fannie  M.  Beach  and  Orville  Connor,  the  former  be- 
ing a teacher,  and  the  other  superintendent  of  the 
Graded  Public  Schools  in  the  City  of  Terre  Haute 
from  excluding  his  son  Clay  O.  Blue  from  attend- 
ing such  school. 

I gather  from  the  decision  the  following  facts: 
An  act  had  been  adopted  by  the  Legislature  of  In- 
diana creating  the  State  Board  of  Health;  giving 
it  practically  the  same  powers  as  those  given  to 
the  State  Board  of  Health  of  this  State  under  Act 
192  of  1898;  amongst  others,  to  use  such  methods 
and  means  as  was  necessary  to  prevent  the  spread- 
ing of  contagious  diseases.  It  is  shown  by  the  case 
that  small  pox  existed  to  a great  extent  in  the  City 


— 43 — 


of  Terre  Haute,  and  the  Board  of  Health  adopted  a 
resolution  prohibiting  the  receiving  of  pupils  in  the 
schools  unless  properly  vaccinated.  In  obedience  to 
this  rule  of  the  Board  of  Health  the  school  teacher, 
Fannie  M.  Beach,  and  Orville  Connor,  Superintend- 
ent of  the  Graded  Public  Schools  of  the  City  of  Terre 
Haute,  refused  to  accept  the  son  of  the  said  Frank 
E.  Blue  into  the  school  because  he  had  not  been 
properly  vaccinated  as  required  by  the  resolution  of 
the  Board  of  Health. 

Blue  then  proceeded  into  court  for  the  purpose  of 
forcing  the  receiving  his  son. 

“The  contention  of  learned  counsel,”  says  the 
Judge,  “is  that  each  paragraph  of  the  answer  is  bad 
and  that  the  state  of  facts  and  the  matters  therein 
disclosed  do  not  justify  the  appellees  from  exclud- 
ing appellant’s  son  from  the  public  school.  Their 
resistance  may  be  said  to  embrace  the  following 
propositions” : 

(1)  “The  exclusion  of  any  pupil  from  the 
public  schools  of  this  State  when  he  is  well  and 
healthy,  as  the  complaint  discloses  was  the  con- 
dition of  Clay  O.  Blue,  and  where  there  has 
been  no  exposure  to  the  infection  of  small  pox, 
cannot  be  sustained  merely  because  such  pupil 
refuses  to  be  vaccinated.” 

(2)  “The  rights  of  the  appellant’s  son  under 
the  facts  shown  by  the  complaint  to  attend  the 
public  school  in  question  is  guaranteed  by  the 
Constitution,  and  the  qualifications  necessary 
to  exercise  this  privilege  are  prescribed  by  stat- 
ute, and  as  there  is  no  statute  providing  that  vac- 
cination of  a pupil  shall  become  precedent  to 
this  condition,  it  is  contended  that  the  order  of 
the  Board  of  Health  is  without  authority  of  law.” 

(3)  “It  is  further  insisted  that  the  rules  and 
by-laws,  rules  and  regulations  necessary  to  se- 
do  not  have  the  power  of  laws  within  their  re- 
spective jurisdictions,  and  that  the  power  of  the 
State  Board  of  Health  to  adopt  by-laws  and 
rules  of  the  nature  of  rule  eleven  is  legislative.” 

“Therefore,  under  Article  4,  Section  1,  of  the 
State  Constitution,  whereby  all  legislative  au- 
thority is  lodged  in  the  General  Assembly,  the 


—44— 


power  to  make  such  laws  cannot  be  delegated  by 
them  to  Boards  of  Health.” 

The  Court,  in  passing  upon  the  question,  says: 

“In  order  to  secure  and  promote  the  public 
health,  the  State  creates  Boards  of  Health  as  in- 
strumentalities or  agencies  for  that  purpose,  and 
invests  them  with  the  power  to  adopt  ordinances, 
by-laws,  rules  and  regeulations  necessary  to  se- 
cure the  object  of  their  organization.  While  it 
is  true  that  the  character  and  nature  of  such 
Board  is  administrative  only,  still  the  powers 
conferred  upon  them  by  the  Legislature,  in  view 
of  the  great  public  interest  confided  to  them, 
have  always  received  from  the  Courts  a liberal 
construction;  and  the  right  of  the  Legisla- 
ture to  confer  upon  them  the  power  to  make  rea- 
sonable rules,  by-laws  and  regulations,  is  gen- 
erally recognized  by  the  authorities.”  (Citing 
many  authorities). 

“When  these  Boards  duly  adopt  rules  or  by- 
laws by  virtue  of  the  legislative  authority,  such 
rules  and  by-laws,  within  their  respective  juris- 
dictions, have  the  force  and  effect  of  a law  of 
the  Legislature,  and  like  an  ordinance  or  by-law 
of  a municipal  corporation,  they  may  be  said  to 
be  enforced  by  authority  of  the  State.”  (Quot- 
ing many  authorities.) 

“It  cannot  be  successfully  asserted,”  says  the 
Court,  “that  the  power  of  Boards  of  Health  to 
adopt  rules  or  by-laws,  subject  to  the  provisions 
of  the  law  by  which  they  are  created,  and  at 
harmony  with  other  statutes  in  relation  to  the 
public  health,  in  order  that  the  ‘outbreak  and 
spread  of  contagious  diseases’  may  be  prevented, 
is  an  improper  delegation  of  legislative  author- 
ity, and  a violation  of  Article  4 of  Section  1 of 
the  Constitution.  It  is  true,  beyond  controversy, 
that  the  Legislative  Department  of  the  State 
wherein  the  Constitution  had  lodged  all  legis- 
lative authority  will  not  be  permitted  to  relieve 
itself  of  this  power  by  the.  delegation  thereof. 
It  cannot  confer  upon  any  body  or  person  the 
power  to  determine  what  the  law  shall  be  as  that 
power  is  one  that  only  the  Legislature,  under 


—45  — 


the  Constitution,  is  authorized  to  exercise;  but 
this  constitutional  inhibition  cannot  properly  be 
extended  so  as  to  prevent  the  grant  of  legislative 
authority  to  some  administrative  boards,  or  of- 
ficials, involving  the  exercise  of  discretion  or 
judgment,  must  be  considered  a delegation  of 
legislative  authority.  While  it  is  necessary  that 
a law  when  it  comes  from  the  law-making  power, 
should  be  complete,  still  there  are  many  matters 
relating  to  matters  of  details  which  may  be,  by 
the  Legislature,  referred  to  some  ministerial  of- 
ficer or  body.  All  such  matters  fall  within  the 
domain  of  the  right  of  the  Legislature  to  author- 
ize an  administrative  board  or  body  to  adopt  or- 
dinances, rules,  by-laws  and  regulations  in  aid  of 
the  successful  execution  of  some  statutory  pro- 
vision.” 

“The  Legislature  cannot  delegate  its  power 
to  make  a law,  but  it  can  make  a law  and  dele- 
gate power  to  determine  some  fact  or  state  of 
things  upon  which  the  law  makes  or  intends  its 
own  action  to  depend.” 

“To  deny  this  would  be  to  stop  the  wheels  of 
government.” 

“There  are  many  things  upon  which  a wise  and 
useful  legislature  must  depend,  which  cannot  be 
known  to  the  law-making  power,  and  must  there- 
fore be  subject  to  inquiry  and  determination  out- 
side of  the  halls  of  legislation.  That  the  power 
granted  to  any  administrative  boards,  of  the  na- 
ture of  the  Board  of  Health,  etc.,  to  adopt  rules, 
by-laws  and  regulations  reasonably  adapted  to 
carry  out  the  purpose  and  object  for  which  they 
were  created  is  not  an  improper  delegation  of 
authority  within  the  meaning  of  the  constitu- 
tional inhibition  in  controversy,  is  no  longer  an 
open  question  and  is  settled  by  a long  line  of  au- 
thorities.” (Quoting  many  authorities.) 

“It  would  seem  that  the  power  of  the  Board  of 
Health  of  this  State  under  the  law  relative  there- 
to to  make  and  adopt  all  reasonable  by-laws,  rules 
and  regulations  to  carry  out  and  effectuate  the 
great  public  interest  confided  to  them  by  the 
Legislature  is  so  well  affirmed  by  authorities 


— 46 — 


that  we  dismiss  that  feature  of  appellant’s  con- 
tention without  further  consideration.” 

“In  the  light  of  the  firmly  settled  principle  of 
law  to  which  we  have  referred  we  may  proceed 
to  the  facts  to  test  thereby  the  acts  of  the  ap- 
pellees in  excluding  Clay  O.  Blue  from  school.” 

The  same  question,  as  cited  in  the  case  of  Blue  vs. 
Beach,  was  raised  in  the  case  of  Leeper  vs.  State.,  and 
for  reasons  identical  with  those  in  the  former  case, 
the  proceedings  under  the  arrest  made  for  a viola- 
tion of  the  rules  of  the  commission  was  maintained. 

In  the  case  of  Pierce  vs.  Doolittle,  quoted  at  page 
751  of  the  106  N.  W.  Rep.,  an  Iowa  case,  the  conten- 
tion therein  raised  was  similar  to  those  raised  in  the 
present  case  by  the  appellant. 

The  case  arose  under  the  Iowa  Health  Code,  sec- 
tion 2573,  which  provided  that  a person  who  knowing- 
ly fails,  neglects  or  refuses  to  comply  with  and  obey 
any  order,  rule  or  regulation  of  the  State  Board  of 
Health  shall  be  guilty  of  a misdemeanor,  and  punish- 
able as  provided  for  in  Section  4906. 

It  was  claimed  that  the  power  thus  given  to  the 
Board  of  Health  was  unconstitutional  because  it  was 
delegating  legislative  power  to  determine  what  acts 
should  constitute  a punishable  offense. 

The  Supreme  Court  of  Iowa,  in  passing  upon  the 
question,  lays  down  the  rule  that  the  Legislature  has 
the  power  to  provide  for  the  punishment  of  acts  in 
resistance  to  and  in  violation  of  authority  conferred 
by  it  upon  the  State  Board  of  Health  to  adopt  rules 
and  regulations  for  the  benefit  of  the  public  health. 
That  such  rules  or  ordinances  are  not  legislative  in 
their  nature  but  administrative;  that  such  rules,  reg- 
ulations and  ordinances  have  the  force  and  effect  of 
a statute  of  the  Legislature,  and  the  opinion  of  the 
lower  Court  was  affirmed. 

Thus  it  becomes  evident  that  the  rules,  regula- 
tions, ordinances  and  health  code  adopted  by  the 
Board  of  Health  in  pursuance  of  the  authority  vested 
in  said  Board  by  the  acts  of  the  Legislature  of  the 
State,  are  not,  in  the  legal  meaning  of  the  law,  legis- 
lative; but,  that  they  are  designed  to  carry  into  ef- 
fect the  necessary  sanitary  measures  to  promote  pub- 
lic health.  This  being  true,  the  powers  to  adopt  and 


— 47 — 


enforce  those  rules,  regulations,  ordinances  and  health 
code  are  not  delegated  legislative  powers,  and  the 
demurrer  based  upon  such  a contention  must  be  over- 
ruled. 

The  next  constitutional  objection  aimed  at  the  legal- 
ity of  the  acts  in  question  has  even  less  force.  It  is 
argued  that  the  State  Board  of  Health  of  this  State, 
in  adopting  a health  code,  did  so,  in  contravention  of 
Article  33  of  the  Constitution  of  this  State  of  1898, 
which  reads  as  follows: 

“The  General  Assembly  shall  never  adopt  any 
system  or  code  of  laws,  but,  in  all  cases  shall  re- 
cite at  length  the  several  provisions  of  the  laws 
it  may  enact/’ 

The  health  code  adopted  by  the  Board  consist  of 
rules,  regulations  and  ordinances  of  said  Board,  for 
more  compactness  and  convenience,  and  is  in  no  sense 
the  adoption  of  the  code  of  laws. 

The  next  and  last  objection  is  that  the  health  code 
has  never  been  promulgated  as  required  by  law,  and 
that  the  said  code  is  unconstitutional  and  ineffective 
because  of  the  lack  of  promulgation,  and  if  it  ever 
was  promulgated,  that  it  never  was  promulgated  in 
the  manner  and  form  as  laid  down  by  Article  42  of 
the  Constitution  of  the  State  of  1898. 

It  has  been  shown  that  these  rules,  regulations,  or- 
dinances and  health  codes,  are  not  legislative  acts, 
but  executive  in  their  nature,  intended  solely  to  more 
effectively  carry  out  the  legislative  intent.  Article 
42  of  the  Constitution  provides  for  the  promulgation 
of  State  Laws  and  not  of  mere  rules,  regulations,  or- 
dinances and  health  codes  adopted  by  a corporation 
created  by  the  State. 

The  promulgation  of  the  rules,  etc.,  etc.,  follow  the 
act  of  their  creation  and  are  to  be  promulgated  as 
directed  by  legislative  authority.  The  acts  giving 
life  and  power  to  the  State  Board  of  Health  direct 
that  the  publication  of  the  Health  Code  is  to  be  made 
by  having  the  same  printed  in  pamphlet  form,  and 
in  that  form  distributed.  It  is  not  claimed  that  this 
form  of  promulgation  has  not  been  followed ; on  the 
contrary,  the  evidence  demonstrates  that  it  has,  and 
I therefore  conclude  that  the  rules,  regulations,  or- 


...48-. 


dinances  and  Health  Code  of  the  State  Board  of 
Health  has  been  promulgated  in  a legal  manner. 

ON  THE  MERITS. 

An  examination  of  the  testimony  in  this  case  shows 
that  “pop,”  as  described  in  the  affidavit,  was  sold 
by  the  defendant  in  the  case;  that  it  contained  sac- 
charin matter  to  an  amount  prohibited  by  Regulation 
37  of  the  Revised  Food  and  Drug  Regulations  of  the 
Louisiana  State  Board  of  Health. 

For  the  reasons  above  given  the  demurrer  herein 
filed  is  overruled,  and  the  judgment  of  the  Lower 
Court  is  affirmed. 


—49— 


SUPREME  COURT  DECISION. 

After  Judge  Chretien  had  upheld  the  constitution- 
ality and  legality  of  the  Sanitary  Code  and  Pure 
Food  and  Drug  Law  of  Louisiana,  the  matter  was 
taken  to  the  Supreme  Court  of  Louisiana  upon 
application  for  writ  of  certiorari,  or  review. 

The  writ  was  granted  and  after  having  held 
the  matter  under  advisement  for  a 
' month  the  following  opinion  and  de- 
cree was  handed  down,  Mr.  Asso- 
ciate Justice  Olivier  O.  Provosty 
being  the  organ  of  the  Court. 


SUPREME  COURT  OF  THE  STATE  OF 
LOUISIANA. 


No.  19,418. 

STATE  OF  LOUISIANA 
vs. 

LARRY  H.  SNYDER. 

In  re  Larry  H.  Snyder  applying  for  writ  of  certiorari 
or  review. 

By  the  Associate  Justice  Olivier  O.  Provosty. 

The  Legislature  having,  by  Act  98,  page  164,  of 
1906,  created  a State  Board  of  Health,  and  required 
to  prepare  and  promulgate  a sanitary  code  and  made 
it  a penal  offense  to  violate  any  of  the  regulations 
thus  to  be  made  by  the  said  Board,  and  the  said  Board 
having  prepared  and  promulgated  a sanitary  code 
and  one  of  the  provisions  of  the  said  code  being  that, 
“Sec.  37.  The  use  of  saccharin  in  any  food 
product  is  prohibited.” 

The  accused  was  prosecuted  and  convicted  and  sen- 
tenced for  a violation  of  said  provision. 


— 50 — 


He  challenges  the  constitutionality  of  said  pro- 
vision on  the  ground  that  the  Legislature  could  not 
validly  delegate  to  the  State  Board  of  Health  the 
power  to  declare  and  provide  what  conduct  shall 
constitute  a crime;  that  the  power  by  which  conduct 
otherwise  innocent  is  made  criminal,  is  legislative, 
and  that  legislative  power  for  State  purposes  can  be 
validly  exercised  only  by  the  Legislature  itself,  can- 
not be  constitutionally  delegated  to  some  subordi- 
nate functionary. 

The  contention  would  be  well  founded  if  it  were 
not  for  Art.  296  of  the  Constitution,  reading: 

“The  General  Assembly  shall  create  for  the 
State,  and  for. each  parish  and  municipality  there- 
in, Boards  of  Health,  and  shall  define  their  dut- 
ies, and  prescribe  the  powers  thereof.” 

Here  the  Legislature  is  authorized  to  “prescribe 
the  powers”  of  the  Board  of  Health.  This  can  only 
mean  to  delegate  to  the  Board  of  Health  such  powers 
as  may  be  deemed  to  be  necessary  for  efficiently  car- 
rying out  the  purposes  for  which  a Board  of  Health 
is  created,  and  the  power  most  obviously  necessary  in 
such  a case  is  that  to  make  health  regulations  that 
shall  have  the  force  of  laws.  And  nothing  more  than 
this  has  been  done  in  the  present  case. 

The  accused  also  contends  that  the  said  sanitary 
code  has  never  been  promulgated.  He  does  not  deny 
that  it  was  promulgated  in  a manner  prescribed  by  the 
statute,  by  being  printed  in  pamphlet  form  and  widely 
distributed,  and  does  not  deny  that  this  mode  of 
promulgation  would  be  sufficient  in  the  absence  of 
anything  to  the  contrary  in  the  Constitution,  but  con- 
tends that  the  Constitution  requires  statutes  to  be 
promulgated  by  publication  in  the  official  journal, 
and  that  if  these  regulations  of  the  Board  of  Health 
are  to  have  the  force  and  effect  of  statutes  they 
ought  to  be  promulgated  like  statutes.  "In  answer  to 
this,  it  suffices  to  say  that  the  provision  of  the  Con- 
stitution thus  invoked,  Art.  42,  has  reference  only  to 
“laws  passed  by  the  General  Assembly”;  and  that 
these  regulations  of  the  Board  of  Health  are  not 
“laws  passed  by  the  General  Assembly.” 

The  accused  also  contends  that  by  thus  making  it 
a penal  offense  to  violate  any  of  the  regulations 


— 51 — 


which  the  Board  of  Health  may  in  the  future  adopt, 
the  Legislature  has  practically  adopted  a system  or 
code  of  laws  in  violation  of  Art.  33  of  the  Constitu- 
tion, which  provides  that  “the  General  Assembly 
shall  never  adopt  any  system  or  code  of  laws  by 
general  reference  to  such  system  or  codes  of  laws; 
but  in  all  cases  shall  recite  at  length  the  several  pro- 
visions of  the  laws  it  may  enact/’ 

This  article  has  no  application  to  a case  like  the 
present,  where  the  Legislature  has  not  adopted  a 
system  or  code  of  laws,  but  has  made  it  a penal  of- 
fense to  violate  whatever  rules  necessary  for  the  con- 
servation of  the  public  health  the  Board  of  Health 
may  make.  The  said  article  is  not  aimed  at  any- 
thing of  that  kind. 

Judgment  affirmed. 


— 52 — 


BRIEF  ON  RE-HEARING 


The  defendant  asked  for  a rehearing  after  the  fore- 
going decision  had  been  rendered  by  the  Supreme 
Court.  The  Board  filed  the  following  brief 
in  reply  to  this  application  for  rehearing: 

No.  19,418. 

SUPREME  COURT  OF  LOUISIANA. 


STATE  OF  LOUISIANA 
vs. 

LARRY  H.  SNYDER. 

May  it  please  Your  Honors: 

Counsel  for  the  Board  of  Health  of  the  State  of 
Louisiana  has  read  carefully  the  petition  for  rehear- 
ing and  the  brief  thereon  filed  by  the  defendant,  and 
counsel  can  find  nothing  there  which  was  not  urged 
and  stressed  in  the  Criminal  District  Court  and  be- 
bore  Your  Honors  heretofore,  unless  it  be  the  state- 
ments made  in  the  first  three  paragraphs  of  the  brief 
of  defendant. 

The  Board  of  Health  of  the  State  of  Louisiana  ad- 
mits that  there  have  been  more  than  fifty  infractions 
of  the  Sanitary  Code  and  the  Pure  Food  and  Drug 
Law  since  this  prosecution  was  instituted  in  the 
Second  City  Criminal  Court.  If  counsel  for  the  de- 
fendant errs  he  errs  in  the  number  of  such  infrac- 
tions ; there  have  been  probably  three  or  four  hun- 
dred such  infractions,  but  counsel  for  the  Board  fails 
to  see  what  bearing  this  can  have  upon  this  case 
other  than  to  accentuate  the  necessity  for  the  regula- 
tions contained  in  the  Pure  Food  and  Drug  Law 
and  the  Sanitary  Code. 

As  to  the  suggestion  that  the  Board  is  provided 
with  an  attorney,  and  the  further  suggestion  that  the 
Legislature  is  now  in  session  in  Baton  Rouge,  and 
the  intimation  that  the  attorney  for  the  Board  might 
go  to  the  General  Assembly  and  have  the  provisions 


—53— 


of  the  Sanitary  Code  and  the  Pure  Food  and  Drug 
Law  put  into  the  shape  of  an  act  of  the  legislature, 
counsel  for  the  Board  can  only  reiterate  the  words  of 
this  Court  in  the  present  case,  in  the  case  of  Board  of 
Health  vs.  Standard  Oil  Company,  in  the  case  of  M. 
L.  & T.  R.  R.  & S.  S.  Co.  vs.  Railway  Commission, 
and  the  words  of  the  Supreme  Court  of  Indiana  in 
Isenhour  vs.  State,  to  the  effect  that  there  are  count- 
less matters  of  executive  and  administrative  detail 
which  more  properly  belong,  in  their  execution,  to 
boards  and  other  governmental  bodies  than  to  legis- 
latures ; for  the  very  good  reason  among  others,  that 
they  involve  the  determination  of  technical  matters 
or  scientific  facts. 

Counsel  for  the  Board  denies  the  suggestion  con- 
tained in  the  third  paragraph  of  counsel  for  defend- 
ant’s brief.  Defendant’s  counsel  says:  “The  mere 
fact  of  expediency  or  necessity  should  not  be  consid- 
ered by  the  Court  in  passing  upon  constitutional 
questions.”  The  opinion  and  decree  handed  down 
herein  on  June  4,  and  of  which  Mr.  Justice  Provosty 
was  the  organ,  was  unanimous ; and  while  “petitioner 
and  other  defendants  are  entitled  to  the  benefits  con- 
ferred upon  them  by  the  provision  of  the  constitu- 
tion,” as  counsel  for  defendant  says,  there  was  no  de- 
nial of  such  right  in  the  opinion  and  decree  in  this 
case. 

Counsel  for  the  Board  desires  to  say  that  but  for 
the  paragraphs  above  referred  to,  he  would  not  have 
imposed  this  present  brief  upon  the  Court.  He  em- 
braced the  opportunity,  however,  of  reiterating  to 
this  Court  what  was  said  in  the  original  brief  herein; 
that  is,  that  every  single  section  of  the  Pure  Food 
and  Drug  Law  and  every  article  of  the  Sanitary  Code 
is  subject  to  a test  which  absolutely  disposes  of  the 
argumentum  ad  hominem  made  by  opposing  counsel. 
This  test  is:  That  every  rule  and  ruling  and  every 
regulation  made  by  the  Board  of  Health  of  the  State 
of  Louisiana,  or  any  other  governmental  agency,  must 
be: 

1st:  REASONABLE. 

2nd:  NECESSARY. 

If  this  test  is  applied,  as  it  must  be,  in  the  en* 


-54— 


forcement  of  the  regulations  made  under  legislative 
and  constitutional  mandate  by  the  Board  of  Health 
of  the  State  of  Louisiana,  it  is  an  assurance  that 
the  humblest  citizen  of  this  State  can  suffer  no  in- 
justice, and  counsel  suggests  that  this  defendant  is 
the  last  person  to  urge  such  an  argument,  since  the 
offenses  with  which  he  was  charged,  and  which  the 
transcript  shows  was  conclusively  pYoven  against 
him  personally,  was  the  use  of  a highly  deleterious 
chemical  in  the  preparation  of  a drink  intended  to 
be  sold  to  the  people  of  this  State  and  which,  from 
its  very  nature,  appealed  particularly  to  women  and 
children. 

Counsel  submits  that  the  rehearing  herein  asked 
for  should  be  denied. 

Respectfully  submitted, 

BENJAMIN  T.  WALDO, 

Counsel  Board  of  Health  of  the 

State  of  Louisiana. 

June  18,  1912. 


The  rehearing  asked  for  was  refused  on  June  28th , 
1912,  and  the  decision  of  the  Supreme  Court  in  the 
case  of  State  vs.  Snyder,  upholding  the  constitution- 
ality and  legality  of  the  Pure  Food  and  Drug  Law  of 
Louisiana  and  of  the  Sanitary  Code  of  Louisiana,  is 
now  f^nal  and , the  Pure  Food  and  Drug  Law  and  the 
Sanitary  Code  are  now  the  paramount  sanitary  and 
hygienic  laws  of  Louisiana. 


—55— 


V 


